CEDH · CASELAW;CLIN;ENG — 12 janvier 2021

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Hungary - 36345/16 Judgment 12.1.2021 [Section IV] Article 8 Article 8-1 Respect for private life Justified publication of applicant’s identifying data, including home address, on tax authority website portal, for failing to fulfil his tax obligations: no violation [This case was referred to the Grand Chamber on 31 May 2021] Facts – The applicant’s personal data had been published on the website of the National Tax and Customs Authority for his failure to fulfil his tax obligations. It named him as a tax defaulter, and subsequently a major tax evader, and detailed his name, the amount of his tax arrears and debts, his tax identification and home address. Law – Article 8: (a)     Applicability – The Tax Authority had published personal data in connection with the applicant’s failure to contribute to public revenue, which could arguably be considered conduct that may be recorded or reported in a public manner. Nonetheless, as such data provided information on the applicant’s economic situation, the data published by the Tax Authority related to the applicant’s private life. In this context, it was of no relevance whether the published data concerned unpaid tax on activities of a professional nature. Furthermore, the measure involved the publication of the applicant’s home address. Article   8 was therefore applicable. (b)     Whether there was an interference prescribed by law and following a legitimate aim – As the information in question had become available to third parties, the publication on the Tax Authority’s website of the data constituted an interference with his private life, which was in accordance with the law. The Court was ready to accept that the impugned measures aimed to improve discipline regarding tax payment and thereby followed the legitimate aim of protecting the economic well-being of the country. Further, the aim of disclosure of the applicant’s data under a list of “major tax evaders” had been to protect the particular interests of third parties, in relation to persons who owe tax, by providing them with an insight in those persons’ financial situation. The State could therefore also invoke the rights and freedoms of others as a legitimate aim. (c)     Whether the interference was necessary in a democratic society – The Court had to consider whether a fair balance had been struck between the applicant’s interest in protecting his right to privacy, and the interest of the community as a whole and third parties, with due regard to the specific context in which the information at issue had been made public. (i)     The regime of publishing the identity of persons who fail to respect their tax obligations – The impugned measure had been implemented in the framework of the State’ general tax policy. Taxes had an instrumental role in financing State apparatus, but also in implementing the economic and social policy of the State in a broader sense. While there were difficulties in establishing whether the publication of tax defaulters’ data actually tackled tax evasion and revenue losses, it was not unreasonable for the State to consider it necessary to protect its general economic interest in collecting public revenue by means of public scrutiny aimed at deterring persons form defaulting on their tax obligations. In addition, any person wishing to establish economic relations with others had a specific interest in obtaining information relating to another person’s compliance with their tax obligations, and ultimately their suitability to do business with, particularly when tax avoidance had persisted for an extended period of time. Since access to such information also had an impact on fair trading and the functioning of the economy, the disclosure of the list of persons who owed a large amount of tax also had an information value for the public on a matter of general interest. Based on the foregoing, and bearing in mind the margin of appreciation allowed to States as regards general measures of economic and social strategy, the legislature’s choice to make public the identity of persons who failed to respect their tax obligations was not manifestly without reasonable foundation. (ii)     Scope and manner of publication of personal data (impact) – The question remained as to whether the impact of the publication in the present case had outweighed the justifications for the general measure, having regard to the essential role played by personal data protection in safeguarding the right to respect for private life. The relevant domestic law provided for the publication of personal details only of major tax defaulters and major tax evaders (those whose tax arrears and tax debts exceeded HUF 10   million – approximately EUR 30,000 – which, given the economic realities of contemporary Hungary, was not an insignificant amount). Publication 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 measure had accordingly been circumscribed to address the risk of distortion of the tax system and the negative effect of such publication had been limited to those whose conduct was most detrimental to revenue. Moreover, the personal data of such a person was removed from the website and no longer made available to the general public once their due taxes had been paid – identification was therefore possible for no longer than was necessary. While the data in question could not be considered intimate details linked to the applicant’s identity, they had still provided quite comprehensive information about him. Despite the fact that the applicant’s home address might have been publicly available in any event, his interest in the protection of his right to respect for private life had still been engaged by its disclosure alongside other information. Further, the publication of personal data, including a home address, could have significant effects or even serious repercussions on a person’s private life. In the circumstances of the present case, however, 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. Communication of a taxpayer’s first name and surname only would not have made it possible to distinguish them from other individuals, would have been likely to have provided inaccurate information, and entailed ramifications for persons bearing the same name. In the circumstances, therefore, a combination of identifiers had been necessary to ensure the accuracy and efficacy of the scheme. Besides, the publication of any identifying data other than those at issue would not have been manifestly less onerous, or constituted a less intrusive interference with Article   8. Uploading the applicant’s personal data to the Tax Authority’s website had made that data accessible to anyone who connected to the Internet, including people in another country. While recognising the importance of the rights of a person who has been the subject of content available on the Internet, those rights had to also be balanced against the public’s right to be informed. In the present case, the purpose and principal effect of publication had been to inform the public, and the main reason for making such data available on the Internet had been to make the information easily available and accessible to those concerned, irrespective of their place of residence. The fact alone that access to the list had not been restricted did not necessarily mean that the list had drawn wide public attention: among other things, an individual seeking the information had to take the initial step of going to the website, proceeding to the tax defaulters’ or tax evaders’ list, and then looking up the desired information. Further, it was doubtful that the list, 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, publication by means of a portal designed for tax matters had ensured that such information had been 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. In addition, the website had not provided the public with a means of shaming the applicant, for example, by way of posting comments underneath the lists in question. Finally, although the applicant had referred to the general public-shaming effect of appearing on the list, there had been no evidence or reference indicating that the publication of his personal data on the list had led to any concrete repercussions in his private life. 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. Making his personal data public had not placed a substantially greater burden on his private life than had been necessary to further the State’s legitimate interest. Conclusion : no violation (five votes to two).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes