Gafiuc v. Romania (European Court of Human Rights)

Information Note on the Court’s case-law 244
October 2020

Gafiuc v. Romania – 59174/13

Judgment 13.10.2020 [Section IV]

Article 10
Article 10-1
Freedom to impart information
Freedom to receive information

Withdrawal of a journalist’s accreditation to conduct archival research following failure to respect the private life of third parties: no violation

Facts – The applicant, a journalist for a daily sports newspaper, obtained accreditation from the National Council for the Study of Securitate Archives (CNSAS) by stating that he was conducting research into the topic “Romanian sport during the communist regime”. Under the CNSAS regulations, a researcher could obtain authorisation to access the archives in question if he or she was carrying out research in order to establish the historical truth about the dictatorship period.

The applicant then published various articles disclosing material about individuals who had collaborated with the political police by informing them about various sports figures who had been under surveillance. The CNSAS subsequently withdrew his accreditation on the grounds that he had breached his duty to respect the private life of persons who had been persecuted by the Securitate and had departed from the declared aim of his research. The courts upheld this reasoning, while extending its legal basis to the general legislation on the protection of personal data.

Law – Article 10:

Interference – The withdrawal of his accreditation as a researcher had had an effect on the applicant’s activities, preventing him from obtaining information to complete his work.

Lawfulness and foreseeability – The applicant argued that the relevant statutory framework expressly referred merely to respect for the private life of persons who had been “persecuted” by the State security bodies – which, in his opinion, was not the case with regard to the persons mentioned in his articles. However, according to the Law on the protection of personal data, where the processing of such data had not been consented to by the individuals in question, it could only be used for the purposes of “statistical, historical or scientific” research, subject to the condition that the information remained anonymous throughout the entire procedure, without prejudice to the general obligation on the public authorities to respect and protect individuals’ intimate, private and family life, in application of the relevant legislation. There appeared to be nothing unreasonable or arbitrary in the domestic courts’ interpretation of those provisions, taken together with the obligations on the applicant with regard to the use of the information gathered.

Necessity in a democratic society – In his capacity as researcher and journalist, the applicant intended to provide the public with information about the methods used by the former political police in the area of sports activities and the type of information that the police sought to obtain. This interest was set against that of the persons mentioned in the archives – who had, in certain cases, been persecuted by the Securitate – namely, their right to have their private life respected.

In the present case, both the specific rules governing the Securitate archives and the general law on the protection of personal data clearly laid down an obligation to protect the private life of others, and set out the conditions in which personal data could be processed.

However, the information disclosed to the public described conduct which related to the private sphere or concerned the moral integrity of the sports figures concerned, or their relationship to religion or the justice system. Moreover, the articles published by the applicant mentioned the individuals in question by name. Even if the articles referred to sports figures who were very well known to the public, it remained the case that the published information did not concern their sporting performances, or even sporting activity in general; it had not been made public by the individuals concerned; it was inaccessible to the public by any other means; and it could not be verified.

Although the question of collaboration with the former political police (including in the field of sports) was of undoubted public interest, the inherent sensitivity of the material meant that it had to be addressed with caution and a critical spirit (see Catalan v. Romania, 13003/04 9 January 2018, Information Note 214). However, the applicant had chosen in his articles not to carry out an academic study of the information he had gathered, but to disclose it in raw form, without assessing its relevance in the light of the declared aim of his research. Rather than filtering this information in order to respect the applicable provisions concerning the processing of personal data, he had disclosed to the public aspects of the private life of sports figures, information that could in no way contribute to a debate of public interest.

Admittedly, the fact that it was impossible to have access to the archives had had a certain impact on the applicant’s research activity. It was true that the law did not define the temporal scope of the withdrawal of the accreditation – it did not, for instance, specify whether or not the individual could still submit, as appropriate, a new request for accreditation. However, the applicant had not been prevented from continuing to work as a journalist.

In any event, having regard to the highly personal nature of the information disclosed, it had been reasonable and legitimate for the CNSAS, as the holder of sensitive documents, to consider that the relationship of trust which ought to govern access to those documents had been irremediably compromised.

It followed that the withdrawal of the applicant’s accreditation had not been disproportionate.

Conclusion: no violation (unanimously).

(See also Magyar Helsinki Bizottság v. Hungary [GC], 18030/11, 8 November 2016, Information Note 201, and Mándli and Others v. Hungary, 63164/16, 26 May 2020, Information Note 240)

Leave a Reply

Your email address will not be published.