From July 2016 Institute for Development of Freedom of Information (IDFI)has been implanting the project Increasing Access to Court Decisions in Georgia. International expert, the Director of the Center for law and Democracy (Canada), Toby Mendel has been actively involved in the process of project implementation. On the 24th of January this year during the public discussion organized by IDFI he presented to the audience recommendations aiming at increasing access to court decisions in Georgia. Bellow we present an academic paper prepared by Mr. Mendel, which discusses the ways of balancing the interests of freedom of information and privacy. The document is based on the challenges faced by Georgia in regards with access to court decisions, which has become subject of active international discussion as a result of the activities conducted by IDFI. With the aim of addressing existing challenges the paper presents the case law of the European Court of Human Rights.
The document highlights that for many years now, an apparent conundrum has lurked just beneath the surface among European jurisdictions. In the Common Law countries – namely the United Kingdom and Ireland – full court decisions, including the names of the parties, are generally accessible to the public. In the rest of Europe, governed by the civil law, however, such decisions are normally published only with the names of the parties redacted. The apparent rationale for the former is the idea of open justice, while in the latter group of countries the idea of personal data protection reigns supreme.
The author highlights that the topic of access to court decisions has never properly come to the fore. It has not even been debated robustly, let alone been the subject of a direct challenge before the European Court of Human Rights. The Institute for Development of Freedom of Information (IDFI), based in the small country of Georgia, where commitment to both openness and privacy is strong, has started to push this issue to the forefront leading to a vibrant ongoing public policy debate with various both civil society and official stakeholders coming down on different sides of the debate.
Moreover he stresses that the paper is an initial foray into the issue. More work needs to be done before a comprehensive resolution of the various differences might be posited. Despite the abovementioned the author emphasizes that some initial conclusions can certainly be drawn.
- First, although it is contingent on the exercise of an expressive right under Article 10 of the ECHR, the right to access information held by public authorities or the right to information is clearly protected by that article, although recognition of that by the European Court of Human Rights has been relatively recent. Access to the names and status of parties (e.g. plaintiff, defendant, witness, expert) to cases are not just incidental to understanding court decisions; they are key pieces of information to understanding the decision in its proper social context. As such, this would fall within the scope of the right to information, even in the limited way this has been defined by the European Court, in the vast majority of cases where requests are made to access court decisions, whether the reasons for wanting to access this information is to expose the past of a public figure, to conduct research into how courts deal with different types of parties or to analyse the performance of courts in different part of the country.
- When assessing the freedom of expression interest in accessing names of parties against privacy interests in obscuring those names, it is the core human right of privacy that must be relied upon. The mere fact that this information constitutes personal data – which is vast in its scope – is not enough. The European Court of Human Rights has held on several occasions that personal data is not privacy protected, for example where it involves the professional activities, including professional opinions, of public officials or information in relation to which the individual cannot claim to have a reasonable expectation of privacy, including because it related to the commission by them of a criminal offence.
- When a privacy interest comes into conflict with an Article 10 freedom of expression interest – whether of an expressive or right to information nature – courts should engage in a balancing exercise to see which interest dominates. Given the social nature of freedom of expression, even a minor public interest in allowing the information to be shared will normally dominate the privacy interest. This may be defeated in special cases, most notably where the privacy of children is involved.
- In the context of a court case, where information has been exposed to the public through an open trial (including because no publication or reporting limitations have been imposed in relation to that information), obscuring the names of the parties in the published decision of that case could be justified only in highly exceptional circumstances. Given the very robust standards relating to openness of trials, this means that in the vast majority of cases, the names of the parties would be included in the public decision.
- Different considerations arise in relation to cases which are published online, due to the very high degree of accessibility, and the ongoing nature of that accessibility over time, which this provides. These considerations may justify a slightly different approach for the publication of cases online.
As a conclusion the author highlights that fairly radical changes are needed to the way decisions of courts are published in many countries. This is particularly the case for civil law countries, where the practice of obscuring the names of parties to cases tends to be very widespread. But it may also be the case for Common Law countries, for example in relation to online cases, where considerations of privacy may not have been taken sufficiently into account.
IDFI’s project Increasing Access to Judicial Decisions in Georgia is supported by the East-West Management Institute (EWMI) under the Promoting Rule of Law in Georgia (PROLoG) Program, funded by the USAID.
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