The State is limited in riding roughshod over individual rights

In recent rulings, European courts have shown they are willing and able to keep individual human beings’ personal rights and dignity as the benchmark which all legislation must meet, writes Simon McGarr

Recent ruling by the European Court of Human Rights might mean the Irish Revenue practice of printing lists of tax defaulters might similarly be illegal.

There has been some recent reporting of a judgment of the European Court of Human Rights finding that a Hungarian law requiring publication on the internet of personal details of people in arrears or default in their tax affairs was a breach of privacy rights.

As there was some confusion on the matter, it is worth pointing out that the ECHR is not an EU institution and its decisions are not EU rulings. As such, it does not have the power to directly strike down legislation, in the way the EU’s Court of Justice has.

Nonetheless, the question has been raised about whether the court’s ruling might mean the Irish Revenue practice of printing lists of tax defaulters might similarly be illegal. While Revenue says it is "examining" the decision, it is required by statute to continue as before unless and until the Irish law is changed.

However, this ECHR decision follows the arguments and logic of an earlier, and more significant, ruling from the CJEU. That found Luxembourg’s laws requiring the creation or a list of who really owns what shares of company, a Register of Beneficial Ownership, were in breach of the EU Charter of Fundamental Rights.

This decision was decried by governments and civil society alike as a blow to transparency and a boon to tax evaders everywhere. However, as with the Hungarian case before the ECHR, the courts have been careful to balance rights and freedoms of individuals and the wishes of the State to name, and sometimes, shame those individuals.

Rights of the individual

Neither the ECHR or the CJEU deny the validity of the aims of the laws they found against. Both transparency of beneficial ownership and promoting tax compliance are legitimate and lawful goals, the courts found. The problem for the losing side in both cases is that, in pursuing those goals, they lost sight of the need to consider and balance them against the rights of the individual.

European Court of Justice.

In the Hungarian case, the law included a requirement to publish the person’s home address. The court found the parliament had not considered whether that was necessary or proportionate in pursuing the goal of tax compliance.

“In so far as it could be said that publication of that list corresponded to a public interest, parliament does not appear to have considered to what extent publication of all the data in question, and in particular the tax debtor’s home address, was necessary in order to achieve the original purpose of the collection of relevant personal data in the interests of the economic wellbeing of the country.” 

Similarly, the CJEU in the Luxembourg case stated that dropping a requirement that someone accessing the data should have a legitimate interest in doing so undermined the balance of necessity and proportionality which has to underpin state interference with privacy and data rights.

“The regime introduced by Directive 2018/843, providing for the general public’s access to information on beneficial ownership, amounts to a considerably more serious interference with the fundamental rights guaranteed in Articles 7 and 8 of the charter, without that increased interference being capable of being offset by any benefits which might result”.

Legitimate aims

The common thread through both these court challenges is the impulse by state bodies to pass laws in pursuit of legitimate aims but in doing so to become blinkered to the limitations on the state in riding roughshod over individuals' rights. 

If you are working as an official tasked with reducing money laundering, that task will come to loom above all other issues when drafting legislation to combat it. But the courts have to decide if the balance has been correctly struck when assessing legislation.

Both the EU court and ECHR have taken their roles seriously in these cases, acknowledging the important and legitimate aims of the states in passing their laws, but then requiring that those laws also demonstrate they do not go beyond what is necessary to meet those aims and what is proportionate in doing so.

Holding the line for this balancing will continue to be critical as advances in technology makes interference with personal privacy and data rights easier, and the passing of laws to allow such technology seem like an obvious response.

Both of these court decisions put down a marker that it will not be enough for the state simply saying it has "always been the way" to do something, or to argue that a particular law must be justified if the general aim is good.

Whether it is mass surveillance of communications, use of facial recognition software by the police or regulation of private companies’ use of AI to make decisions that affect us all, we should be glad the courts are willing and able to keep individual human beings’ personal rights and dignity as the benchmark which all legislation must meet.

• Simon McGarr is a solicitor with McGarr Solicitors and the director of Data Compliance Europe, a data protection consultancy. He is an external examiner in data protection for the Law Society of Ireland