Article 10 and Access to Information (again…) – the view from the Grand Chamber

Loyal readers know that the past 18 months have seen a succession of cases address whether Article 10 of the ECHR (the right to freedom of expression) comprehends a right of access to information held by public bodies.

As previously blogged by Julian Milford, in Sugar v BBC the UK Supreme Court (per Lord Brown, in his own inimitable style…) gave the argument that Article 10 could confer a right of access to information exceedingly short shrift. The Court of Appeal in Kennedy v Charity Commission [2012] EWCA Civ 317 (blogged by Anya Proops) then handed down a judgment that, notwithstanding the CoA’s somewhat quixotic decision to grant permission to appeal, appeared to signal that in Sugar the Article 10 ‘access to information’ argument had been given its quietus.

However, the plot simply continues to thicken as the Grand Chamber of the ECtHR has just handed down a judgment – Gillberg v Sweden, Application no. 41723/06, 3 April 2012 – which (while far from a model of clarity) appears to endorse the proposition that Article 10 can (in certain circumstances, the scope of which are almost entirely unclear) confer a right of access documents held by public bodies. The crucial paragraph of the Grand Chamber’s judgment is at [93] where it is stated that:

“…In the Court’s view, finding that the applicant had such a right under Article 10 of the Convention would run counter to the property rights of the University of Gothenburg. It would also impinge on K’s and E’s rights under Article 10, as granted by the Administrative Court of Appeal, to receive information in the form of access to the public documents concerned, and on their rights under Article 6 to have the final judgments of the Administrative Court of Appeal implemented (see, mutatis mutandis, Loiseau v. France (dec.) no. 46809/99, ECHR 2003-XII, extracts; Burdov v. Russia, no. 59498/00, § 34, ECHR 2002-III; and Hornsby v. Greece, judgment of 19 March 1997, § 40, Reports 1997-II).”

It should be noted immediately that: (i) the issue as to whether Article 10 connotes a right of access to documents was very much peripheral to the case, and so the Grand Chamber’s observation is very much obiter dictum (or the Strasbourgian (sic) equivalent); (ii) the passage does not cite the recent Strasbourg case law said to support the proposition that Article 10 confers a right of access to information e.g. Tarsasag v Hungary etc; and (iii) the critical part of the passage appears premised on the assumption that the content of the ‘Article 10 right’ of access to documents is defined by Swedish domestic law (rather than enjoying an autonomous ambit as defined by the ECHR itself).

However, notwithstanding these important caveats, this does appear to be the first occasion on which the Grand Chamber has endorsed the proposition that Article 10 (at least in some circumstances) is capable of conferring a right of access to documents held by public bodies. Could this prompt the UK Supreme Court in Kennedy to reappraise the stance towards the ambit of Article 10 advocated by Lord Brown in Sugar ? Watch this space.

Joe Barrett