EHRM, 12-01-2021, nr. 36345/16

An interference will be considered ‘necessary in a democratic society’ for the achievement of a legitimate aim if it answers a ‘pressing social need’ and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’ (see S. and Marper, cited above, § 101).

The Court's case-law indicates that in order to determine the proportionality of a general measure, the Court must primarily assess the legislative choices underlying it. The quality of the parliamentary and judicial review of the necessity of the measure is of particular importance in this respect, including to the operation of the relevant margin of appreciation (see A.-M.V. v. Finland, no. 53251/13, § 82, 23 March 2017). The central question as regards such measures is not whether less restrictive rules should have been adopted or, indeed, whether the State could prove that, without the prohibition, the legitimate aim would not be achieved. Rather the core issue is whether, in adopting the general measure and striking the balance it did, the legislature acted within the margin of appreciation afforded to it (see, mutatis mutandis, Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 110, ECHR 2013 (extracts)). Other factors to be taken into account in assessing the compatibility of a legislative scheme involving the imposition of restrictive measures in the absence of an individualised assessment of an individual's conduct is the severity of the measure involved and whether the legislative scheme is sufficiently narrowly tailored to address the pressing social need it seeks to address in a proportionate manner (see Polyakh and Others v. Ukraine, nos. 58812/15 and 4 others, § 293, 17 October 2019, with further references). The application of the general measure to the facts of the case remains illustrative of its impact in practice, and is thus material to its proportionality (see, for example, James and Others v. the United Kingdom, 21 February 1986, § 36, Series A no. 98).

A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy (see Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, § 179, 15 November 2016). Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature's policy choice unless it is ‘manifestly without reasonable foundation’ (see, among other authorities, Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 52, ECHR 2006-VI, and Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007-V). There will also usually be a wide margin accorded if the State is required to strike a balance between competing private and public interests or Convention rights (see S.H. and Others v. Austria [GC], no. 57813/00, § 94, ECHR 2011).

On the other hand, the Court also has regard to the essential role played by personal data protection in safeguarding the right to respect for private life as guaranteed by Article 8 (see G.S.B. v. Switzerland, no. 28601/11, § 90, 22 December 2015). The Court's case-law indicates that the protection afforded to personal data depends on a number of factors, including the nature of the relevant Convention right, its importance to the person in question, and the nature and purpose of the interference. According to the judgment in S. and Marper (cited above, § 102), the margin will tend to be narrower where the right at stake is crucial to the individual's effective enjoyment of intimate or key rights. Where a particularly important facet of an individual's existence or identity is at stake, the margin allowed to the State will be restricted (see S.H. and Others, cited above, § 94).

In the present case, the Court must consider whether the State can be said to have struck a fair balance between the applicant's interest in protecting his right to privacy, and the interest of the community as a whole and third parties, as invoked by the Government.

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 (see paragraph 39 above), and the applicant disagreed (see paragraph 34 above). 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 (see paragraph 39 above). 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 (see, mutatis mutandis, Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 194, 8 November 2016) or an issue merely satisfying public curiosity (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 110, ECHR 2012).

Based on the above, and bearing in mind the margin of appreciation allowed to States as regards general measures of economic and social strategy, the Court finds that the legislature's choice to make public the identity of persons who fail to respect their tax obligations, in order to improve payment discipline and protect the business interests of third parties, and thereby contribute to the general economy, is not manifestly without reasonable foundation (see the case-law quoted in paragraph 49 above).

However, the applicant also took issue with the rationale underlying the legislative choices made as regards the scope of the personal data published and the manner of publication on the Internet. The question thus remains as to whether the impact of the publication in the present case outweighed the above-described justifications for the general measure. In this connection, the Court must have regard to the essential role played by personal data protection in safeguarding the right to respect for private life as guaranteed by Article 8 and the fundamental principles of data protection (see paragraphs 15 and 50 above).

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 (see paragraph 9 above). 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 (see the case-law quoted in paragraph 48 above).

The Court also observes that, as alleged by the Government (see paragraph 40 above) and not contested by the applicant, the personal data of a person who owed a large amount of tax were removed from the Tax Authority's website and the information in question was no longer made available to the general public once the person concerned had paid his or her due taxes. Consequently, the Court is satisfied that the identification of data subjects on the Tax Authority's website was possible for no longer than was necessary for the purposes of publication.

The Court notes that the disputed publication concerned the applicant's name, home address, tax identification number and the amount of unpaid tax which he owed. While these data cannot be considered intimate details linked to the applicant's identity, they still provided quite comprehensive information about him. Furthermore, despite the fact that the applicant's home address might have been publicly available in any event (for example, from telephone directories), his interest in the protection of his right to respect for his private life was still engaged by the disclosure of his home address along with the other information. Furthermore, it is important to emphasise at this point that the publication of personal data, including a home address, can have significant effects or even serious repercussions on a person's private life (see, mutatis mutandis, Alkaya, cited above, §§ 29 and 39).

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 (see paragraph 36 above).

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 (see, inter alia, Egill Einarsson v. Iceland, no. 24703/15, § 46, 7 November 2017).

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.

On the other hand, the Court finds force in the Government's argument that widespread public access to the data concerned was necessary for the efficacy of the scheme (see paragraph 41 above). While recognising the importance of the rights of a person who has been the subject of content available on the Internet, these rights must also be balanced against the public's right to be informed (see M.L. and W.W. v. Germany, nos. 60798/10 and 65599/10, § 104, 28 June 2018). In the present case, the purpose and the principal effect of publication were to inform the public, and the main reason for making such data available on the Internet was to make the information easily available and accessible to those concerned, irrespective of their place of residence.

The Court finds that the applicant's reliance in this regard on the circular issued by the National Authority for Data Protection and Freedom of Information (see paragraph 36 above) is to no avail. That document was issued in respect of persons who owned unpaid local tax to the local government, and was of relevance to only the local community (see paragraph 13 above). However, in the present case, the publication was intended to provide the general public with an insight into the state of tax defaulters' debt. It corresponded to everyone's interest in knowing who owed money to the central revenue and the whole community.

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 (see Savva Terentyev v. Russia, no. 10692/09, § 79, 28 August 2018; contrast Delfi AS v. Estonia [GC], no. 64569/09, § 117, ECHR 2015).

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 (see paragraph 34 above), 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.