In this feature we revisit older posts which remain of current interest. In this updated series of posts from May 2010 Hugh Tomlinson QC considers the relationship between freedom of expression and freedom of information in European, international and domestic law. Part 1 was posted on 5 February and Part 2 on 6 February.
The Strasbourg and international case law shows that that the right to freedom of information can now properly be described as a “human right” – an essential aspect of the right to freedom of expression. This is understandable, both in terms of the standard formulation of freedom of expression as including a right to “receive” information and in practical terms. Without access to information, many other human rights such the right to private and family life or to effective access to the Courts cannot be effectively exercised. The promotion and defence of the rights to freedom of expression, privacy and access to court directly and necessarily involves the establishment and exercise of the fundamental human right to access to information.
The Early Cases
Until recently the English law did not recognise any right to receive information. The arguments were, perhaps, most fully developed before the Shipman inquiry, when CNN sought permission from the Chair, Dame Janet Smith, to broadcast the proceedings. She heard extensive submissions from Mr Geoffrey Robertson QC in support of the application, relying on the common law and the then Strasbourg jurisprudence. She also considered an independent opinion on the point by Mr David Pannick QC and Miss Jane Mulcahy.
Dame Janet refused the application by CNN in a ruling given on 25 October 2001. She was of the view that “The Convention does not provide for freedom of access to information” . In relation to Article 10 she concluded that it “does not apply to create a presumptive right for any person to film the proceedings” . In making this ruling Dame Janet relied on the decision of High Court of Justiciary in Petition No.2 of British Broadcasting Corporation  HRLR 423 refusing applications to broadcast the Lockerbie trial.
The ruling in the Shipman Inquiry was followed by Lord Hutton in a ruling given on 5 August 2003, In the Matter of Applications by ITN, BSkyB, Channel 4, Channel 5, ITV and IRN radio. He refused to give permission to film and broadcast the evidence of witnesses.
These rulings, of course, pre-dated the recent Article 10 case law on the right to information (see the first of these posts). As recently as January 2010 the Supreme Court in Re an Application by Guardian News and Media Ltd ( UKSC 1) held that on “the existing Strasbourg law, a right to obtain [any information which would not otherwise be available] to a person was not within the scope of Article 10″ . However, this point was not the subject of any argument in that case and the recent Strasbourg case law was not cited.
Recent cases: recognition of a right to information
The domestic case law has now recognised the “right to access to information”. The leading case is A v Independent News & Media Limited ( EWCA 343) – this has been previously discussed by Dan Tench on this blog. Briefly, the Court of Appeal noted that historically, neither the Strasbourg nor the domestic courts had given much weight to the right to receive information under Article 10 however, it went on to hold that in the light of the recent Strasbourg cases the right to obtain information as part of Article 10. They went on to recognise the particular importance of the right when it was the media which was seeking to obtain access to information about court proceedings:
“Tarsasag and Leander were decisions involving access to records kept by the executive arm of the 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 Tarsasag. Further, the complaint in this case is that of the media who want the information for public purposes, as in Atkinson and Tarsasag, rather than being a complaint of an individual as in Leander and Gaskin” 
In other words, the Court held recognised the Article 10 right to information and held that its engagement was particularly clear when the media is seeking access to information for “public purposes”. The media is entitled to access to information to enable it to discharge its role as “public watchdog”.
The point was further considered in the case of Sugar v BBC ( 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. 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  and ).
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 ), 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 case was dealt with in a post in July 2010. Mr Sugar has obtained permission to appeal against the decision to the Supreme Court. It appears that the appeal will be heard in November 2011.
A retrograde step?
The Article 10 right to freedom of information was also considered in the recent case of R (on the application of Guardian News and Media Limited) v City of Westminster Magistrates’ Court ( EWHC 3376). The issue in that case was whether a newspaper was entitled to copies of documentary exhibits in a criminal case. The newspaper relied, inter alia, on Article 10 and, in particular, on Tarsasag and Independent News. It was held that these cases did not assist:
“The Independent and the Tarsasag cases would only have been of assistance to the Guardian’s case if its case in the present claim had been that it had been denied access to details of the claim (as in the Tarsasag case) or access to hear the proceedings (as in the Independent case). That clearly is not the case. We do not consider that there is any basis or any justification for extending the Article 10 rights of the Guardian so as to entitle it to inspect additional documents merely because its journalists have a genuine concern to see them. In addition, if the Guardian’s case was correct and its journalists had a genuine desire to inspect documents which had been made available for the purpose of criminal proceedings (including unused material), such documents would then automatically become open for inspection even if they had not been relied on and even though they had been produced solely for the purpose of the criminal proceedings. This extension of Article 10 sought by the Guardian cannot be justified. For those reasons we do not think that Article 10 assists the Guardian” .
This is an unduly restrictive analysis of these cases which establish that Article 10 is engaged when the media are seeking information about Court proceedings. The Court’s apparent concerns about making documents available should have been addressed at the Article 10(2) “justification” stage. I suggest that this case is a retrograde step – the Court could and should have recognised the right to access information in criminal cases deriving from Article 10 and then gone on to analyse the “justifications” for refusing access to documents.
Although its development in domestic law is at an early stage, the Article 10 “right information” has potentially wide ranging implications. Article 10 should strengthen the position of those requesting information under the Freedom of Information Act 2000. It is an additional factor to be placed in the balance when the “public interest” is being considered in relation to “qualified exemptions” – at present the Information Commissioner’s guidance on “public interest” makes no mention of Article 10.
It could also be important in a number of other areas. I will give just two examples:
- In the area of “public and media access” to public meetings and inquiries – in contrast to the position in relation to the Shipman and Hutton inquiries, when considering whether there should be access for the media or for broadcasters the “balancing exercise” should now start from the presumption in favour of access to information under Article 10 with an “interference” restricting access having to be justified under Article 10(2).
- In the area of access to information held by bodies which are not listed as public authorities in Schedule 1 to the Freedom of Information Act 2000 – these could include bodies which perform some “public functions” (such as the Press Complaints Commission or the Association of Chief Police Officers) and perhaps even private bodies. It is interesting to note that the modern “Bill of Rights” found in Chapter 2 of the South African Constitution provides a right to access to information held by any person “that is required for the exercise or protection of any rights“, s.32(1)(b) and the Convention could “evolve” in the same direction.
The important point is that the international and domestic case increasingly points to the existence of a freestanding “right to information”, a right independent of the Freedom of Information Act. This right can now be invoked by the press and others in areas not covered by the statute. The right to information has now come of age. It is likely to be developed in a range of different areas over the next few years.