Freedom of information, including the right to access information held by public authorities, is an important component of the right to freedom of expression. Freedom of information cases often deal with claims based on a positive obligation on governments to make information accessible.
In Law Office of Ghazi Suleiman v. Sudan (Communication No. 228/99, Sixteenth Activity Report 2002-2003, Annex VII), the African Commission on Human and Peoples’ Rights based its decision on a judgement by the Inter-American Court of Human Rights to elaborate on the right to freedom of information:
50. The Inter American Court states that -: “when an individual’s freedom of expression is unlawfully restricted, it is not only the right of that individual that is being violated, but also the right of all others to “receive” information and ideas”. It is particularly grave when information that others are being denied concerns the human rights protected in the African Charter as did each instance in which Mr. Ghazi Suleiman was arrested.
In Open Door and Dublin Well Woman et al. v. Ireland , the European Court dealt with a complaint concerning restrictions imposed on the two applicant companies as a result of a court injunction prohibiting them from providing information to pregnant women on the location or identity of, or method of communication with, abortion clinics in the United Kingdom. Following proceedings brought against the applicant companies by the Attorney General at the request of the Society for the Protection of Unborn Children, the Supreme Court found that such non-directive counselling assisted in the destruction of the unborn, contrary to the constitutional right to life of the unborn expressly guaranteed by the Constitution of Ireland. The Court therefore issued an injunction restraining the applicant companies and their servants or agents from assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic. The injunction kept the applicants from making travel arrangements for pregnant women, or informing them of the identity and location of, and the method of communication with, a specified clinic or clinics or other locations where abortion procedures were available. This case is also discussed under the right to life,Euthanasia and Abortion ).
Open Door and Dublin Well Woman v. Ireland
European Court of Human Rights
Applications Nos. 14234/88 and 14235/88
Judgement of 29 October 1992
Keywords: expression &ndash right to privacy &ndashdemocratic society &ndashhealth or morals
III. ALLEGED VIOLATION OF ARTICLE 10
2. Court’s examination of the issue
59. This question must be approached by considering not merely the wording of Article 40.3.3° in isolation but also the protection given under Irish law to the rights of the unborn in statute law and in case-law.
It is true that it is not a criminal offence to have an abortion outside Ireland and that the practice of non-directive counselling of pregnant women did not infringe the criminal law as such. Moreover, on its face the language of Article 40.3.3° appears to enjoin only the State to protect the right to life of the unborn and suggests that regulatory legislation will be introduced at some future stage.
On the other hand, it is clear from Irish case-law, even prior to 1983, that infringement of constitutional rights by private individuals as well as by the State may be actionable (see paragraph 35 above). Furthermore, the constitutional obligation that the State defend and vindicate personal rights “by its laws” has been interpreted by the courts as not being confined merely to “laws” which have been enacted by the Irish Parliament [?] but as also comprehending judge-made “law”. In this regard the Irish courts, as the custodians of fundamental rights, have emphasised that they are endowed with the necessary powers to ensure their protection (ibid.).
60. Taking into consideration the high threshold of protection of the unborn provided under Irish law generally and the manner in which the courts have interpreted their role as the guarantors of constitutional rights, the possibility that action might be taken against the corporate applicants must have been, with appropriate legal advice, reasonably foreseeable (See the Sunday Times v. the United Kingdom judgment of 26 April 1979, Series A no. 30, p. 31, para. 49).
This conclusion is reinforced by the legal advice that was actually given to Dublin Well Woman that, in the light of Article 40.3.3°, an injunction could be sought against its counselling activities.
The restriction was accordingly “prescribed by law”.
C. Did the restriction have aims that were legitimate under Article 10 para. 2?
63. The Court cannot accept that the restrictions at issue pursued the aim of the prevention of crime since, as noted above (paragraph 59), neither the provision of the information in question nor the obtaining of an abortion outside the jurisdiction involved any criminal offence. However, it is evident that the protection afforded under Irish law to the right to life of the unborn is based on profound moral values concerning the nature of life which were reflected in the stance of the majority of the Irish people against abortion as expressed in the 1983 referendum. The restriction thus pursued the legitimate aim of the protection of morals of which the protection in Ireland of theright to life of the unborn is one aspect. It is not necessary in the light of this conclusion to decide whether the term “others” under Article 10 para. 2 extends to the unborn.
D. Was the restriction necessary in a democratic society?
64. The Government submitted that the Court’s approach to the assessment of the “necessity” of the restraint should be guided by the fact that the protection of the rights of the unborn in Ireland could be derived from Articles 2, 17 and 60 of the Convention. They further contended that the “proportionality” test was inadequate where the rights of the unborn were at issue. The Court will examine these issues in turn.
1. Article 2
66. The Court observes at the outset that in the present case it is not called upon to examine whether a right to abortion is guaranteed under the Convention or whether the foetus is encompassed by the right to life as contained in Article 2. The applicants have not claimed that the Convention contains a right to abortion, as such, their complaint being limited to that part of the injunction which restricts their freedom to impart and receive information concerning abortion abroad.
Thus the only issue to be addressed is whether the restrictions on the freedom to impart and receive information contained in the relevant part of the injunction are necessary in a democratic society for the legitimate aim of the protection of morals as explained above. It follows from this approach that the Government’s argument based on Article 2 of the Convention does not fall to be examined in the present case. On the other hand, the arguments based on Articles 17 and 60 fall to be considered below.
[?] The determination by the Irish courts that the provision of information by the relevant applicants assisted in the destruction of unborn life was not open to review by the Convention institutions.
68. The Court cannot agree that the State’s discretion in the field of the protection of morals is unfettered and unreviewable [?].
It acknowledges that the national authorities enjoy a wide margin of appreciation in matters of morals, particularly in an area such as the present which touches on matters of belief concerning the nature of human life. As the Court has observed before, it is not possible to find in the legal and social orders of the Contracting States a uniform European conception of morals, and the State authorities are, in principle, in a better position than the international judge to give an opinion on the exact content of the requirements of morals as well as on the “necessity” of a “restriction” or “penalty” intended to meet them [?].
However this power of appreciation is not unlimited. It is for the Court, in this field also, to supervise whether a restriction is compatible with the Convention.
70. Accordingly, the Court must examine the question of “necessity” in the light of the principles developed in its case-law [?]. It must determine whether there existed a pressing social need for the measures in question and, in particular, whether the restriction complained of was “proportionate to the legitimate aim pursued”[?].
71. In this context, it is appropriate to recall that freedom of expression is also applicable to “information” or “ideas” that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” [?].
72. While the relevant restriction, as observed by the Government, is limited to the provision of information, it is recalled that it is not a criminal offence under Irish law for a pregnant woman to travel abroad in order to have an abortion. Furthermore, the injunction limited the freedom to receive and impart information with respect to services which are lawful in other Convention countries and may be crucial to a woman’s health and well-being. Limitations on information concerning activities which, notwithstanding their moral implications, have been and continue to be tolerated by national authorities, call for careful scrutiny by the Convention institutions as to their conformity with the tenets of a democratic society.
73. The Court is first struck by the absolute nature of the Supreme Court injunction which imposed a “perpetual” restraint on the provision of information to pregnant women concerning abortion facilities abroad, regardless of age or state of health or their reasons for seeking counselling on the termination of pregnancy. The sweeping nature of this restriction has since been highlighted by the case of The Attorney General v. X and Others and by the concession made by the Government at the oral hearing that the injunction no longer applied to women who, in the circumstances as defined in the Supreme Court’s judgment in that case, were now free to have an abortion in Ireland or abroad 74. On that ground alone the restriction appears over broad and disproportionate. Moreover, this assessment is confirmed by other factors.
75. In the first place, it is to be noted that the corporate applicants were engaged in the counselling of pregnant women in the course of which counsellors neither advocated nor encouraged abortion, but confined themselves to an explanation of the available options. The decision as to whether or not to act on the information so provided was that of the woman concerned.
There can be little doubt that following such counseling there were women who decided against a termination of pregnancy. Accordingly, the link between the provision of information and the destruction of unborn life is not as definite as contended. Such counselling had in fact been tolerated by the State authorities even after the passing of the Eighth Amendment in 1983 until the Supreme Court’s judgment in the present case. Furthermore, the information that was provided by the relevant applicants concerning abortion facilities abroad was not made available to the public at large.
76. It has not been seriously contested by the Government that information concerning abortion facilities abroad can be obtained from other sources in Ireland such as magazines and telephone directories or by persons with contacts in Great Britain. Accordingly, information that the injunction sought to restrict was already available elsewhere although in a manner which was not supervised by qualified personnel and thus less protective of women’s health. Furthermore, the injunction appears to have been largely ineffective in protecting the right to life of the unborn since it did not prevent large numbers of Irish women from continuing to obtain abortions in Great Britain.
77. In addition, the available evidence, which has not been disputed by the Government, suggests that the injunction has created a risk to the health of those women who are now seeking abortions at a later stage in their pregnancy, due to lack of proper counselling, and who are not availing themselves of customary medical supervision after the abortion has taken place. Moreover, the injunction may have had more adverse effects on women who were not sufficiently resourceful or had not the necessary level of education to have access to alternative sources of information. These are certainly legitimate factors to take into consideration in assessing the proportionality of the restriction.
3. Articles 17 and 60
78. The Government, invoking Articles 17 and 60 of the Convention, have submitted that Article 10 should not be interpreted in such a manner as to limit, destroy or derogate from the right to life of the unborn which enjoys special protection under Irish law.
79. Without calling into question under the Convention the regime of protection of unborn life that exists under Irish law, the Court recalls that the injunction did not prevent Irish women from having abortions abroad and that the information it sought to restrain was available from other sources. Accordingly, it is not the interpretation of Article 10 but the position in Ireland as regards the implementation of the law that makes possible the continuance of the current level of abortions obtained by Irish women abroad.
80. In the light of the above, the Court concludes that the restraint imposed on the applicants from receiving or imparting information was disproportionate to the aims pursued. Accordingly there has been a breach of Article 10.
When deciding on this case, the European Court took into consideration that the absolute nature of the injunction imposed a ‘perpetual’ restraint on the provision of information to pregnant women concerning abortion facilities abroad, regardless of age or state of health or their reasons for seeking counselling on the termination of pregnancy, and stated that on this ground alone the restriction appeared over-broad and disproportionate.
In cases concerning restrictions of the press, the European Court has ruled that the public has a right to receive information as a corollary of the specific function of journalists, which is to impart information on matters of public interest. The Government is therefore under a negative obligation not to restrict the flow of information from others. However, the European Court of Human Rights has affirmed in many cases that the right to receive information only guarantees the freedom to receive information without hindrance by states. Thus, no positive obligation to provide information has been recognised in the European system (see, i.e., Guerra et al. v. Italy , Application No. 14967/89, Judgement of 19 February 1998).
In the following case, Gauthier v. Canada , the applicant, a newspaper publisher, applied for membership of the Canadian Parliamentary Press Gallery, an independent, voluntary association which administers an accreditation system for access to parliamentary press facilities. A full pass gives the holder access to facilities such as the press gallery where note-taking is permitted (as opposed to the public gallery where it is not), receipt of a mail shot detailing news and events inside Parliament, and permission to ask questions at press conferences. The applicant had repeatedly been denied full access for no disclosed reason and had instead been granted only a temporary pass, which entitled him to very limited use of these facilities.
Human Rights Committee
Communication No. 633/1995
Views of 7 April 1999
Keywords: expression - effective remedy - public order - association - equal before the law
THE COMMITTEE’S EXAMINATION OF THE MERITS
13.3 The issue before the Committee is thus whether the restriction of the author’s access to the press facilities in Parliament amounts to a violation of his right under article 19 of the Covenant, to seek, receive and impart information.
13.4 In this connection, the Committee also refers to the right to take part in the conduct of public affairs, as laid down in article 25 of the Covenant, and in particular to General Comment No. 25 (57) which reads in part: “In order to ensure the full enjoyment of rights protected by article 25, the free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion.”nGeneral comment No. 25, paragraph 25, adopted by the Committee on 12 July 1996. Read together with article 19, this implies that citizens, in particular through the media, should have wide access to information and the opportunity to disseminate information and opinions about the activities of elected bodies and their members. The Committee recognizes, however, that such access should not interfere with or obstruct the carrying out of the functions of elected bodies, and that a State party is thus entitled to limit access. However, any restrictions imposed by the State party must be compatible with the provisions of the Covenant.
13.5 In the present case, the State party has restricted the right to enjoy the publicly funded media facilities of Parliament, including the right to take notes when observing meetings of Parliament, to those media representatives who are members of a private organisation, the Canadian Press Gallery. The author has been denied active (i.e. full) membership of the Press Gallery. On occasion he has held temporary membership which has given him access to some but not all facilities of the organisation. When he does not hold at least temporary membership he does not have access to the media facilities nor can he take notes of Parliamentary proceedings. The Committee notes that the State party has claimed that the author does not suffer any significant disadvantage because of technological advances which make information about Parliamentary proceedings readily available to the public. The State party argues that he can report on proceedings by relying on broadcasting services, or by observing the proceedings. In view of the importance of access to information about the democratic process, however, the Committee does not accept the State party’s argument and is of the opinion that the author’s exclusion constitutes a restriction of his right guaranteed under paragraph 2 of article 19 to have access to information. The question is whether or not this restriction is justified under paragraph 3 of article 19. The restriction is, arguably, imposed by law, in that the exclusion of persons from the precinct of Parliament or any part thereof, under the authority of the Speaker, follows from the law of parliamentary privilege.
13.6 The State party argues that the restrictions are justified to achieve a balance between the right to freedom of expression and the need to ensure both the effective and dignified operation of Parliament and the safety and security of its members, and that the State party is in the best position to assess the risks and needs involved. As indicated above, the Committee agrees that the protection of Parliamentary procedure can be seen as a legitimate goal of public order and an accreditation system can thus be a justified means of achieving this goal. However, since the accreditation system operates as a restriction of article 19 rights, its operation and application must be shown as necessary and proportionate to the goal in question and not arbitrary. The Committee does not accept that this is a matter exclusively for the State to determine. The relevant criteria for the accreditation scheme should be specific, fair and reasonable, and their application should be transparent. In the instant case, the State party has allowed a private organization to control access to the Parliamentary press facilities, without intervention. The scheme does not ensure that there will be no arbitrary exclusion from access to the Parliamentary media facilities. In the circumstances, the Committee is of the opinion that the accreditation system has not been shown to be a necessary and proportionate restriction of rights within the meaning of article 19, paragraph 3, of the Covenant, in order to ensure the effective operation of Parliament and the safety of its members. The denial of access to the author to the press facilities of Parliament for not being a member of the Canadian Press Gallery Association constitutes therefore a violation of article 19 (2) of the Covenant.
13.7 In this connection, the Committee notes that there is no possibility of recourse, either to the Courts or to Parliament, to determine the legality of the exclusion or its necessity for the purposes spelled out in article 19 of the Covenant. The Committee recalls that under article 2, paragraph 3 of the Covenant, States parties have undertaken to ensure that any person whose rights are violated shall have an effective remedy, and that any person claiming such a remedy shall have his right thereto determined by competent authorities. Accordingly, whenever a right recognized by the Covenant is affected by the action of a State agent there must be a procedure established by the State allowing the person whose right has been affected to claim before a competent body that there has been a violation of his rights.
14. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political rights , is of the view that the facts before it disclose a violation of article 19, paragraph 2, of the Covenant.