Publication on the internet of public debtors information. The posting served the public interest. Non-violation of the right to respect for privacy
JUDGMENT
L.B. v. Hungary 12.01.2021 (app. no. 36345/16)
SUMMARY
Privacy, publicity of public debtors on the internet, personal data and public interest.
The applicant brought an action for violation of his privacy under Article 8 of the ECHR because the tax authority published tax lists on the internet with his personal data as a major “tax evader”. The published information included his name, home address, VAT number and the amount of his overdue debt.
The Court has reiterated its well-established case-law that the disclosure of information about a person’s private life by a public authority is tantamount to interfering with Article 8 § 1 of the ECHR, and to be considered “necessary in a democratic society” must serve an urgent need.
The ECtHR accepted that the measure in question was designed to address the risk of tax system distortion, served as an “urgent social need” and the state reduced the consequences for those concerned by disclosing the data to a tax portal that actually visited those who were particularly interested in it. The ECtHR considered that the disclosure of the data was necessary for the protection of the public interest and was at the discretion of the state. As it had a limited effect on the applicant ‘s privacy, it found no violation of Article 8 of the ECHR.
PROVISION
Article 8
PRINCIPAL FACTS
The applicant, Mr L.B., is a Hungarian national who was born in 1966 and lives in Budapest.
The case concerned the tax authorities’ publishing of his personal data on the Internet for failure to
pay taxes.
On 27 January 2016 the National Tax and Customs Authority published the applicant’s personal details
on a list of tax defaulters on its website, as provided for under the relevant domestic law in respect of
those individuals whose tax arrears and debts exceeded 10 million Hungarian forints.
The information published included the applicant’s name, home address, tax identification number
and the amount of unpaid tax which he owed.
He subsequently also appeared on a list of “major tax evaders” on the tax authorities’ website, while
an online media outlet produced an interactive map of tax defaultersindicating his home address with
a red dot.
Relying on Article 8 (right to respect for private and family life and the home) of the European
Convention on Human Rights, the applicant alleged that the publication of his name and other details
on the tax defaulters’ list had not been necessary, arguing that the main reason for it had been to
publicly shame him.
THE DECISION OF THE COURT…
It is established case-law that the release or use by a public authority of information relating to a person’s private life amounts to an interference with Article 8 § 1 of the Convention.
In the present case, because the information in question became available to third parties, the publication on the Tax Authority’s website of data naming the applicant as a tax defaulter and subsequently a major tax evader and detailing the precise amount of his tax arrears and tax debts, his tax identification number and his home address, constituted an interference with his private life within the meaning of Article 8. In examining whether the interference was justified in the light of paragraph 2 of Article 8, the Court has to assess whether the authorities acted “in accordance with the law”, pursuant to one or more legitimate aims, and whether the impugned measure was “necessary in a democratic society”.
In its assessment, the Court will have due regard to the specific context in which the information at issue was made public. The Court finds it important that the impugned measure was implemented in the framework of the State’s general tax policy. It is relevant to note at this point the instrumental role of taxes in financing State apparatus, but also in implementing the economic and social policy of the State in a broader sense. The Court acknowledges the difficulties in establishing whether the publication of tax defaulters’ data actually tackled tax evasion and revenue losses. The Government argued that it did, and the applicant disagreed. The Court does not find it unreasonable that the State considers it necessary to protect its general economic interest in collecting public revenue by means of public scrutiny aimed at deterring persons from defaulting on their tax obligations.
In addition to the economic interests of the country as a whole in a functioning tax system, the Government also referred to the protection of the economic interests of private individuals, that is, potential business partners. The Court sees no reason to call into question the idea that any person wishing to establish economic relations with others has a specific interest in obtaining information relating to another person’s compliance with his or her tax obligations, and ultimately his or her suitability to do business with, particularly when tax avoidance persists for an extended period of time. Since access to such information also has an impact on fair trading and the functioning of the economy, the Court is ready to accept that the disclosure of the list of persons who owed a large amount of tax had an information value for the public on a matter of general interest. Such publication did not concern a purely private matter.
The Court notes at the outset that the Tax Administration Act, which was the basis of the impugned measure, provided for the publication of the personal details of major tax defaulters and major tax evaders. Publication under section 55(3) and section 55(5) of the Tax Administration Act was only authorised in respect of those private individuals whose tax arrears and tax debts exceeded HUF 10 million, which, given the economic realities of contemporary Hungary, cannot be held to be an insignificant amount. Furthermore, the publication of the personal data of major tax evaders under section 55(5) of the Tax Administration Act was subject to the condition that the affected persons had failed to fulfil their tax obligations over an extended period of time, namely 180 days. The legislation thus drew a distinction between taxpayers, based on relevant criteria. The Court therefore accepts that the measure was circumscribed to address the risk of distortion of the tax system, and the legislature limited any negative effect of such publication to those whose conduct was the most detrimental to revenue .
In the circumstances of the present case, the Court accepts that the list of tax defaulters and tax evaders would have been pointless if it had not allowed for the identification of the taxpayers in question. While it is true that a name is one of the most common means of identifying someone, in the present context, it is clear that the communication of a taxpayer’s first name and surname only would not have made it possible to distinguish him or her from other individuals. The publication of those personal data would not have been sufficient to fulfil the publication’s purpose of facilitating public scrutiny of tax evasion. Moreover, a list restricted to taxpayers’ names would have been likely to provide inaccurate information and entail ramifications for persons bearing the same name.
Therefore, the Court does not call into question the legislature’s view that, in the circumstances, a combination of identifiers was necessary to ensure the accuracy and efficacy of the scheme. The legislature cannot be criticised for the fact that in order to provide accurate information on tax evaders, it chose a person’s home address as additional identifying information. Besides, the applicant did not suggest, and the Court does not find, that the publication of any identifying data other than those at issue would have been manifestly less onerous, or would have constituted a less intrusive interference with his right to respect for his private life.
The Court further notes the applicant’s argument that the information about him was published on the Internet and made available to an unnecessarily large audience, potentially worldwide.
It is important to emphasise at this point the Court’s well-established case-law holding that the risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press .
In the present case, it must be acknowledged that the publication of information concerning unpaid taxes subjects a taxpayer to public scrutiny, scrutiny which increases in proportion to the extent of the publicity. Uploading the applicant’s personal data to the Tax Authority’s website made those data accessible to anyone who connected to the Internet, including people in another country.
It is also clear that the reach and thus potential impact of a statement released online with a small readership is certainly not the same as that of a statement published on mainstream or highly visited web pages.
In the present case, the fact alone that access to the list was not restricted did not necessarily mean that the list drew much public attention: amongst other things, an individual seeking the information had to take the initial step of going to the Tax Authority’s website, proceeding to the tax defaulters’ or tax evaders’ list, and then looking up the desired information.
Furthermore, the Court has doubts as to whether the list of tax defaulters and tax evaders, appearing in Hungarian on the website of the Tax Authority, would have attracted public attention – worldwide – from persons other than those concerned. On the contrary, more than any other form of publication, publication by means of a portal designated for tax matters ensured that such information was distributed in a manner reasonably calculated to reach those with a particular interest in it, while avoiding disclosure to those who had no such interest.
The Court also finds it relevant that the Tax Authority’s website did not provide the public with a means of shaming the applicant, for example, a way of posting comments underneath the lists in question.
Finally, the Court cannot but note that although the applicant referred to the general public-shaming effect of appearing on the list, his submissions contained no evidence or reference to personal circumstances indicating that the publication of his personal data on the tax defaulters’ and tax evaders’ list had led to any concrete repercussions on his private life. In the Court’s view, in the circumstances of the present case, making the information in question public could not be considered a serious intrusion into the applicant’s personal sphere. It does not appear that making his personal data public placed a substantially greater burden on his private life than was necessary to further the State’s legitimate interest.
Given the specific context in which the information at issue was published, the fact that the publication was designed to secure the availability and accessibility of information in the public interest, and the limited effect of the publication on the applicant’s daily life, the Court considers that the publication fell within the respondent State’s margin of appreciation.
It follows that there has been no violation of Article 8 of the Convention.
