Is Freedom of Information a 'Human Right'?

Author: Jonathan Mitchell QC | Posted: May 22, 2008

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“THE RIGHT TO KNOW: FREEDOM OF INFORMATION”
The Human Rights Conference 2008

Is Freedom of Information a ‘Human Right’?

The right of access to official information is nowhere protected explicitly by ECHR.  Attempts to establish a right of access to official information under Article 10, which protects the right to impart and to receive information, have not so far been successful.  The European Court of Human Rights commented, in the leading case of Leander v Sweden:
“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 him. [Article 10] does not, in circumstances such as the present case, confer on the individual a right of access to [information], nor does it embody an obligation on [a] government to impart such information to the individual.”

The phrase ‘circumstances such as the present case’ has been repeated by the Court on a number of occasions in refusing to find any violation of the Convention in a failure to disclose information.  This formula has indeed been described by the Court as ‘established jurisprudence’.  Yet, although it suggests that the result might be different in different circumstances, none have yet been found by the Court to be enough.  In the case which was perhaps the closest it came to doing so, Sdruzeni, 10 July 2006, while finding that the applicants (a Czech environmentalist group) were in principle entitled under Article 10 to access to documents regarding the design and construction of a nuclear power station, the Court went on to find that commercial confidentiality was a sufficient answer on the facts.

Occasionally, however, the Court has held that a right of access to official information can be taken from other articles of the Convention. Access to personal data has been allowed under Article 83; a refusal to grant local communities access to environmental information relative to health risks has been held to breach Article 84; and, more traditionally, Article 6 rights to a fair trial may involve a right of access to official information.  There are other exceptional cases.

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