The European Court of Human Rights ruled on a case involving two Finnish companies that published taxation data of over 1.2 million people. The court found that while journalists have broad freedom of expression, personal data can be withheld if publishing it would breach individuals' right to privacy. Though taxation data is publicly available under Finnish law, publishing it on such a large scale was deemed processing personal data without authorization. The court determined the interference with the companies' expression rights was necessary to protect taxpayers' privacy rights, and that they could continue publishing taxation data to a lesser extent. However, the court also found that the lengthy domestic legal proceedings in Finland violated the companies' right to a fair trial.

1. EDPL 1|2016130 Case Notes
Does Privacy Overpower Journalistic Freedom?
Stephanie Mihail*
Satakunnan Markkinapörssi Oy and Satamedia Oy v Finland, ECtHR 21 July 2015.
I. Facts
In a highly interesting case of conflicting rights be-
tween the right to privacy and the right to freedom
of expression, in the domain of protection of person-
al data and journalism data, the European Court of
Human Rights (ECtHR) has ruled1
that journalists
can be prevented from publishing information –
even if publicly available, when there is a breach of
the individual’s right to privacy.
The applicants, Satakunnan Markkinapörssi Oy
(Satakunnan)andSatamediaOy(Satamedia),twolim-
ited liability companies based in Finland, and the re-
spondent Government of Finland had been engaged
in national proceedings for over eight years. In par-
ticular, the first applicant, Satakunnan, has been pub-
lishing yearly information about natural persons’ tax-
able income and assets, which according to Finnish
lawispubliclyavailable,inVeropörssimagazine,since
1994, in collaboration with the second applicant, Sata-
media. In 2003, Satamedia also started an SMS ser-
vice, where users could send a person’s name to a ser-
vice number, upon which they would receive taxation
informationaboutthispersonbasedonpubliclyavail-
able data. This resulted in the publication of taxation
data of 1.2 million people in 2002, which constituted
at the time a third of all taxable persons in Finland.
In 2003, the Data Protection Ombudsman request-
ed from the Data Protection Board (i.e. the compe-
tent data protection authority in Finland) to prohib-
it the processing of taxation data in the manner and
to the extent that had been the case in 2002. In the
view of the Ombudsman, the companies had no right
to establish such personal data registers under the
Finish Personal Data Act2
, since the derogation con-
cerning journalism provided by the Act was not ap-
plicable. Conversely, the Data Protection Board dis-
missed that request based on the grounds of applica-
tion of the journalistic exception of the Act. This in-
stigated the proceedings, since the Ombudsman ap-
pealed to the Helsinki Administrative Court. The re-
quest of the Ombudsman was rejected by that Court
on the same grounds with the justification that ‘the
exception concerning journalism, should not be in-
terpreted too strictly, as it would then favor the pro-
tection of privacy over the right to freedom of expres-
sion’. According to the Court, the magazine had a
journalistic purpose and it was in the public interest
to publish such data. A second appeal followed to the
Supreme Administrative Court, which decided to re-
quest a preliminary ruling from the Court of Justice
of the European Union (CJEU) on its interpretation
of Directive 95/46/EC3
in this matter.
SittinginaGrandChambercomposition,theCJEU
found that ‘activities involving the processing of per-
sonal data, which contained solely and in unaltered
form, material already published in the media, fell
within the scope of the Directive’.4
After outlining
the importance of the right to freedom of expression
in every democratic society, the CJEU held that it was
necessary to interpret notions relating to that free-
dom broadly. In addition, the CJEU stated that in or-
der to achieve a balance between the two competing
fundamental rights, the derogations and limitations
in relation to the protection of data had to apply on-
ly in so far as strictly necessary. Moreover, the CJEU
found that activities relating to data, which were in
the public domain under national legislation, could
be classified as ‘journalistic activities’ if their object
was to disclose to the public information, opinions
or ideas, irrespective of the medium used to transmit
them. When applying this preliminary ruling of the
* Legal Researcher in KU Leuven Centre for IT & IP Law – iMinds.
For correspondence: <stephanie.mihail@law.kuleuven.be>.
1 Satakunnan Markkinapörssi Oy and Satamedia Oy v Finland App
no 931/13 (ECtHR, 21 July 2015) (Satamedia).
2 See art 9 of Directive 95/46/EC of the European Parliament and of
the Council of 24 October 1995 on the protection of individuals
with regard to the processing of personal data and on the free
movement of such data, OJ L 281, 31: ‘Member States shall
provide for exemptions or derogations from the provisions of this
Chapter (...) for the processing of personal data carried out solely
for journalistic purposes or the purpose of artistic or literary
expression, only if they are necessary to reconcile the right to
privacy with the rules governing freedom of expression.’
3 See Directive 95/46/EC (n 2) art 3(1).
4 C‑3/07 Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and
Satamedia Oy (CJEU, 16 December 2008) ECLI:EU:C:2008:727.

2. EDPL 1|2016 131Case Notes
CJEU to the facts of the case, the Finnish Supreme
Administrative Court quashed the previous national
decisions on the ground that when balancing the
right to freedom of expression against the right to
privacy, the decisive factor was ‘to assess whether a
publication contributed to a public debate or was
solely intended to satisfy the curiosity of readers’.5
The case was referred to the Data Protection Board,
which issued an administrative sanction to the ap-
plicants, prohibiting them from publishing taxation
data in such manner and extent, as carried out in
2002.
The applicants appealed against the latter decision
of the Data Protection Board to the Helsinki Admin-
istrative Court, which transferred the case to the
Turku Administrative Court, complaining about the
violation of the prohibition of censorship and their
freedom of expression, as protected by the Finnish
Constitution. Their appeal was rejected on the
grounds that the case was not about the public na-
ture of the taxation documents nor about the right
to publish them, instead under examination at that
point was only the decision rendered by the Data Pro-
tectionBoard,followingtheSupremeAdministrative
Court’s decision of 23 September 2009. After a sec-
ond appeal and rejection from the Supreme Admin-
istrative Court, the applicants reached the ECtHR,
complaining about the violation of their rights to
freedom of expression, the length of the proceedings
anddiscrimination,asguaranteedrespectivelybyAr-
ticles 10, 6 and 14 of the European Convention of Hu-
man Rights (the Convention).
II. Judgment
In its judgment of 21 July 20156
, the ECtHR found no
violation of the applicants’ right to freedom of ex-
pression, as guaranteed by Article 10 of the Conven-
tion, as will be further analysed below. Regarding the
alleged violation of Article 14 of the Convention (i.e.
prohibition of discrimination), the ECtHR found this
part manifestly ill-founded and therefore inadmissi-
ble. No difference in treatment was found because
the applicants published the taxation data on a much
greater scale and could therefore not be compared
with the other newspapers. Nonetheless, the ECtHR
did find a violation of Article 6 paragraph 1 of the
Convention (fair trial), as the length of the proceed-
ings at domestic level was excessive and failed to
meet the ‘reasonable time’ requirement, even taking
into account the complexity of the case.
1. The ‘Necessity’ of the Interference
The applicants complained that their right to free-
dom of expression had been violated in a manner
which was not ‘necessary in a democratic society’.
Taxation data in Finland are publicly available and
other newspapers had been able to continue publish-
ing such information. Therefore, the applicants ar-
guedthattheywereputunderpriorcensorship.Their
argument was based on the lack of prescription of
proactive limitations to the freedom of expression in
the Personal Data Act. In other words, the applicants
claimed that collecting and publishing taxation data
was not forbidden, because ‘publishing of taxation
data was common, frequent and expressly accepted
by the Finnish legislator’7
. Therefore, the imposed
prohibitionconstitutedcensorship.Moreover,theap-
plicants noted that the limitations to their freedom
of expression on the basis of the estimated general
interest was made prior to the publication. In the
view of the applicants, the Supreme Administrative
Court’s conception of journalism was in contradic-
tion with that of the CJEU, according to which jour-
nalism was to be interpreted broadly.
The respondent argued that, in the special circum-
stances of the case, prohibiting the applicants from
processing taxation data did not constitute an inter-
ference with their right to freedom of expression. If
such an interference were to be found, it would be in
any event prescribed by law and ‘necessary in a de-
mocratic society'. The extensive publication in unal-
tered form without journalistic comments of individ-
uals’ taxation data, even when publicly available, had
mainly satisfied the curiosity of the readers. Regard-
ing the sanctions on the applicants, the respondent
stated that the Data Protection Board had permitted
the first applicant to process personal data to the ex-
tent that they would be used exclusively for journal-
istic activities and processed for journalistic purpos-
es. Therefore, it could have changed its activity to be
more compliant with the Personal Data Act require-
5 Satamedia (n 1) para 48.
6 Satamedia (n 1).
7 ibid, para 44.
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3. EDPL 1|2016132 Case Notes
ments way. Moreover, the respondent argued that
this case did not concern prior censorship, but ‘the
assessment of the legal preconditions set for the han-
dling of personal data with the aim of ensuring the
protection of private life’.
When considering whether there was an interfer-
ence with the applicant’s right to freedom of expres-
sion, the ECtHR held that the prohibition issued by
the Data Protection Board did not prevent the appli-
cant companies from publishing taxation data as
such, but it did prohibit them instead to collect, save
and process data to such extent. For that reason, there
was an interference with the applicants’ right to im-
part information, as guaranteed by Article 10 para-
graph 1 of the Convention. As to whether the inter-
ference was ‘prescribed by law and pursued a legiti-
mate aim’8
, and taking into account Article 10 para-
graph 2 of the Convention and the provisions of the
Finnish Personal Data Act, the ECtHR held that the
ban was made pursuant to the Personal Data Act, be-
cause the underlying question before the domestic
courts of Finland was whether the journalistic excep-
tion provided by the Act could be applied to the com-
panies. The ECtHR also held that the interference
wasbasedonthelegitimateaimofprotectingtherep-
utation or rights of others, leading to the examina-
tion of the third criterion, namely, whether this in-
terference was necessary in a democratic society.
According to the ECtHR’s well-established case
law, freedom of expression constitutes one of the es-
sential foundations of a democratic society. Howev-
er, this freedom is subject to the exceptions set out
in Article 10 paragraph 2, which must be strictly con-
strued. According to the ECtHR, ‘necessary’ implies
that a ‘pressing social need’ exists and although the
contracting states have a certain margin of appreci-
ation in their assessment, the ECtHR is empowered
to give the final ruling on whether a ‘restriction’ is
reconcilable with the right to freedom of expression.
In particular, it is for the ECtHR to determine on a
case by case basis, whether the interference was ‘pro-
portionate to the legitimate aims pursued’ and
whether the reasons adduced by the national author-
ities were ‘relevant and sufficient’. Therefore, the EC-
tHR examines whether the national authorities had
applied standards in compliance with the principles
embodied in Article 10 of the Convention. In this re-
spect, the ECtHR, when examining the necessity of
an interference with the right to freedom of expres-
sion9
in the interests of the ‘protection of the reputa-
tion or rights of others’10
, considers a number of cri-
teria, such as:
(1) contribution to a debate of general interest; (2)
howwell-knownisthepersonconcernedandwhat
is the subject of the report; (3) prior conduct of the
person concerned; (4) method of obtaining the in-
formation and its veracity/circumstances in which
the photographs were taken; (5) content, form and
consequences of the publication; and (6) severity
of the sanction imposed.11
1. The 'Public Interest Value'
The fact that the taxation data are publicly available
in Finland, according to the Act on the Public Disclo-
sureandConfidentialityofTaxInformationandthat,
as such, are considered to be a matter of public inter-
est, was not in dispute nor were the means of collec-
tion of these data, which were directly received from
the tax authorities. It is the excessive extent of the
published information that lies at the heart of this
case,sincetheapplicantshadpublishedandforward-
ed to an SMS service data concerning 1.2 million tax-
payers in 2002. As the ECtHR repeatedly noted in its
judgment, ‘the publishing of taxation information to
such an extent could not be considered as journal-
ism, but as processing of personal data, which the ap-
plicant companies had no right to do’.
The ECtHR aligned with and referred extensively
to the preliminary ruling of the CJEU, which had
found that ‘the notion of journalism is to be inter-
preted broadly and, therefore, the activities of the ap-
plicant companies may be classified as ‘journalistic’,
but that it was for the national court to decide
whether those activities were ‘solely for journalistic
purposes’ or, in other words, whether ‘the sole object
of those activities (was) the disclosure to the public
of information, opinions or ideas’; and that any dero-
gations and limitations were to ‘apply only in so far
as (...) strictly necessary’.
The ECtHR found that the Finnish Supreme Ad-
ministrative Court had achieved an appropriate bal-
ance between the applicants’ right to freedom of ex-
8 ibid, para 54.
9 art 10 of the European Convention of Human Rights.
10 art 8 of the European Convention of Human Rights.
11 Satamedia (n 1) para 62.

4. EDPL 1|2016 133Case Notes
pression and the Finish taxpayers’ right to privacy,
since in its reasoning, the Supreme Administrative
Court, interpreted the applicants’ right to freedom of
expression strictly, in order to protect the right to pri-
vacy of the taxpayers12
. Regarding the impugned
sanctions, the ECtHR found that the applicants were
only prohibited from publishing the tax information
to a certain extent and that nothing prevented them
from continuing their activities in a lesser extent13
.
In conclusion, the ECtHR held that the reasons relied
on by the domestic courts and authorities were both
relevant and sufficient to show that the interference
complained of was ‘necessary in a democratic soci-
ety’ and that therefore, there was no violation of the
applicants’ right to freedom of expression.
III. Comment
The ECtHR found that the guidance provided from
the CJEU regarding the balance between the two con-
flicting rights was followed by the national courts in
Finland14
, following the well-established practice of
the last years, where the ECtHR and the CJEU align
and refer to one another. Without any doubt, there
was certainly an interference with the applicants’
right to publish. In order to assess whether this in-
terference was justified as necessary and proportion-
al, the ECtHR had to consider if the activities of the
applicants could be regarded ‘as activities pursued
solely for journalistic purposes’. According to the
facts of this case, the ECtHR found that the public in-
terest did not require the publication of personal da-
ta to such an extent (1.2 million persons), and that
therefore, the limitations in relation to the protection
of data did not apply in this case. It is worth men-
tioning the dissenting opinion of judge Tsotsoria15
,
who emphasized the fact that the approach of the EC-
tHR in this case did not follow its established case
law. Indeed, the ECtHR usually finds a violation of
Article 10 in cases where national authorities have
taken measures to protect publicly available and
known information on matters of public interest
from disclosure.16
The dissenting opinion continued by stating that
‘no negative effect or harm was identified as having
been inflicted upon any individual, nor had society
been otherwise imperiled through the publication of
the taxation data at issue’17
. Finally, the judge noted
that regrettably, the majority agreed with the respon-
dent state that the applicant companies’ activities did
not fall within the exception for the purposes of jour-
nalism in the Personal Data Act’, and that this can
lead to an interpretation ‘that journalists are so lim-
ited in processing data that the entire journalistic ac-
tivity becomes futile (..), particularly in the light of
the dynamic and evolving character of media’. There-
fore, he stated that ‘the national authorities in the
particular circumstances of the case did not apply
standards in conformity with the principles embod-
ied in Article 10 of the Convention and overstepped
themarginofappreciationaffordedtothem’andthat
‘consequently, the ECtHR should have exercised its
supervisoryfunctionandshouldhaveconcludedthat
the interference with the applicant companies’ right
to freedom of expression was not ‘necessary in a de-
mocratic society’18
.
The following part of his dissenting opinion insti-
gates an interesting point for further interpretation.
The judge states that ‘another aspect of the judgment
that may lead to further restrictions on freedom of
expression is the linking of journalistic activity to the
extent of the information published. Establishing a
quantitative framework for publicly available infor-
mation and limiting the freedom guaranteed by Ar-
ticle 10 on this ground does not correspond to the no-
tion of a ‘pressing social need’.19
Although the scale
of the data processing activities is an important pa-
rameter in the assessment of the infringement of the
right to privacy, one could agree that the establish-
ment of a quantitative criterion for the assessment
of balance between the two competing rights would
endanger the right to freedom of expression. Howev-
er, it is apparent from the reasoning of the judgment
thatestablishingsuchaquantitativecriterionwasnot
in the intentions of the ECtHR. Instead, the extent of
publication was used as an assessment tool for the
analysis of the ‘public interest’ value, which leads to
the general remark that the relationship between
12 ibid, paras 71-72.
13 ibid, para 63.
14 See also concurring opinion of judge Nikolaou, 27.
15 See also dissenting opinion of judge Tsotsoria, 29.
16 Observer and Guardian v the United Kingdom no 13585/88
(ECtHR, 26 November 1991) and Fressoz and Foire v France no
29183/95 (ECtHR, 21 January 1999).
17 para 8 of the dissenting opinion, 30.
18 ibid, paras 12 and 32.
19 ibid, paras 10 and 31.

5. EDPL 1|2016134 Case Notes
‘public interest’ value and ‘data privacy rights’ is in-
versely proportional; the lower the public interest
value, the higher the data protection of individuals.
Regarding the nature and severity of the im-
pugned measures, judge Tsotsoria states that they
‘had financial consequences for the applicant com-
panies. Hence, the severity of the measures imposed
should have played a role in the proportionality
analysis. However, the ECtHR found that the appli-
cants were only prohibited from publishing the tax
information to a certain extent and that nothing pre-
ventedthemfromcontinuingtheiractivitiesinaless-
er extent, thus, they were given the opportunity to
modify their activities in a more compliant manner
with the requirements set by the Finnish Personal
Data Act. Overall, the ECtHR has emphasized on the
importance of interpreting the ‘public interest' value
on a case by case basis in an attempt to balance the
conflicting rights to freedom of expression and to
privacy.