The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
Contents hide
2 The Right to Freedom of Expression
2.1 Committee noted Fundamental of the Rights
2.2 In 2009, Human Rights Committee
3 Right to Take Part in Public Affairs
4 The Right to Respect for Private Life
4.1 to recordings of environmental radiation levels came within the scope of Article 8.
5 The Nature of the Information That May Be Sought
6.1.2 [18] 1998^I; 26 EHRR 357.
The presence of a right of access to government information is progressively accepted around the globe, both at the domestic and international levels. At the domestic level, a right to information is to be found in a growing number of constitutions and since the early 1990s, there has been a huge upsurge in the number of countries adopting Freedom of Information laws.[1] Globally, the existence of a right of access to information is regularly articulated in international human rights documents; the first international convention on access to information[2] has been adopted; and human rights enforcement bodies, both regional and global, have interpreted existing human rights treaties as protecting a right to information in a variety of situations.
In 2011, in a highly substantial development, the UN Human Rights Committee published a new General Comment on Article 19 of the ICCPR,[3] which, in contrast to its predecessor,[4] expressly well recognized that Article 19 holds a general right of access to information achieved by public bodies. The General Comment noted, in arriving at this position, that Article 19, taken together with Article 25 of the ICCPR, had previously been interpreted by the Committee as encompassing a right of the media to access to information on public affairs[5] and the right of the general public to obtain media productivity.[6]
The Committee also noted that fundamentals of the right of access to information were address elsewhere in the ICCPR. It was pointed out, for instance, that General Comment No 16 regarding Article 17 of the Covenant, the right to privacy, addresses the issue of access to an amendment of personal data relating to individuals,[7] while General Comment No 32 regarding Article 14 of the ICCPR, the right to a fair trial, sets out the various entitlements to information that are held by those accused of a criminal offence.[8]
In 1999, the UN Human Rights Committee expressed the view in Gauthier v Canada[9] that Article 19, read together with Article 25 i.e. the right to take part in the conduct of public affairs, ‘entails that peoples, in particular through the media, shall have extensive access to information and the chance to disseminate information and opinions about the actions of elected bodies and their members’.
The 2009 admissibility verdict of the Human Rights Committee in S.B. v Kyrgyzstan,[10] was less encouraging in terms of the recognition of a right to information. The applicant was a human rights activist who had requested information concerning the pronouncing of death sentences in Kyrgyzstan. The Human Rights Committee observe that the applicant had not enlighten ‘why exactly he, personally, need the information in question’ and that he had simply put the contend that it was a matter ‘of public interest’. The Committee also observed that, in light of these situations, and ‘in the absence of any other pertinent information’, the complaint established an actio popularis
and was hence inadmissible.
In 2011, the verdict was again in favour of the right to information with the decision of the Human Rights Committee in another case emanating from Kyrgyzstan, Toktakunov v Kyrgyzstan,[11] the facts of which mirror those of S.B. v Kyrgyzstan. The Committee found that the applicant’s Article19 rights had been violate by the refusal of the Kyrgyzstan authorities to provide him with access to statistics on the imposition of death sentences in that jurisdiction. On the issue of admissibility, the Committee note that the information sought had been deem to be information of public interest in
a number of UN documents, each of which was either sign or
accepted by Kyrgyzstan.
The Committee went stated that the reference to the right to ‘seek’ and ‘receive’ information contained in Article 19(2) encompassed the right of individuals to receive State-held information, subject to the exceptions. In an unblemished departure from its approach in S.B. the Committee observed that the ‘information should be provide without the need to prove direct interest or
personal involvement in order to attain it, except in cases
in which a legitimate restriction is apply’.
The Committee want to differentiate the place in Toktakunov from that in S.B. on the basis that the complainant in Toktakunov was a legal consultant of a human rights public association, and ‘as such, he can be see to have a distinct ‘‘watchdog’’ purpose on issues of public interest’. Considering the fact that S.B. was a human rights activist who, like Toktakunov, sought access to information regarding death sentences, this distinction is difficult to sustain. The Committee reached to a conclusion that the complainant was, as an individual member of the public, directly affected
by the refusal of the authorities to create the information available to him and
that the application was hence admissible.
International human rights implement several provisions planned and designed to promote participation in government, for instance, the right to take part in public affairs, the right to vote and the right to free elections. In ICCPR Article 25 supports equally both participatory and representative modes of democracy in so far
as it guards the right to take part in the conduct of public affairs, directly or
through freely chosen representatives. The rationale for recognising a right to information based on the right to take participate in public affairs is that
a well-functioning democracy requires an informed electorate. Models of participative democracy, in particular, require that citizens be sufficiently well-inform to enable them to effectively participate in government. The connection between access to information and participation in public affairs has also been acknowledged in international human rights jurisprudence. In Gauthier v Canada[12], the UN Human Rights Committee relied on Article 25 of the ICCPR, along with the right to freedom of expression, in upholding a complaint of a journalist who was deprived to the access of press facilities in the parliament.
Privacy rights are secure in international human rights instruments. Similar to, Article 17 of the ICCPR provides. The right to privacy is also secure by most regional human rights mechanisms.[13]
Maximum information the withholding of which has been hold to give rise to a violation of Article 8 consists of personal information, viz child care, social services and medical records, but the bench has also acknowledge that a violation of the right to respect for private life may arise in the case of the withholding of or
failure to provide information which is not personal to the applicant, but
in which he or she has a personal interest in obtaining access. In Guerra v Italy,[14] the information in question was not personal information of the requester but consisted instead of information that would have allowed the applicants to assess the risk they might run from living in a town exposed to a severe environmental hazard,[15] while part of the disputed information in McGinley and Egan v United Kingdom[16] consisted of recordings of environmental radiation levels.
Where the applicants were seeking a connection between their health problems to alleged exposure to radiation during their military service, the Hon’ble court established that the alleged failure of the authorities
to allow the applicants access to portions of their military medical records and
The foundation of this decision the documents in question contain information which might have assist the applicants in assessing radiation levels in the areas in which they were station throughout the tests, and might have aide to reassure them.[17] Most of the information the withholding of which has been hold to give rise to a violation of Article
8 contains of personal information, viz child care, social services and medical records, nonetheless the bench also accepted that a violation of the right
to respect for private life may arise in the case of the withholding of or
failure to supply information which is not personal to the
applicant, but in which he or she has a personal interest in obtaining access. For example, in Guerra v Italy,[18] the information in question was not personal information of the requester but consisted instead of information that would have allowed the applicants to evaluate the risk they might run from living in a town showing to a severe environmental hazard.[19]
The right of access given for in the Convention on Access to Official Documents is unlimited in terms of the nature and
kind of the information to which it applies in that it protects
‘information recorded in any form, drawn up or received and held by public authorities’.[20] In Kenedi v Hungary,[21] the Court observed that the information at issue consisted of ‘original documentary sources’ looked-for legitimate historical research. Therefore, the information, to which the right to information arising beneath both the right to take part in public affairs and
the right to freedom of expression might apply, would have to meet some kind of public interest qualitative test.
According to Sen, the recognition of claims as human rights rest on their capacity to ‘survive open public scrutiny’. On the foundation of this test, it can be contend that the right to information meets the requirements for recognition as
an intrinsic right. To be precise, one can point to the acknowledgement of a stand-alone right to information at international level in the Council of Europe Convention on Access to Official Documents and
to the right to receive information in the EU Charter of Fundamental Rights
and, at domestic level, to the constitutions of an increasing and
developing number of jurisdictions which comprise a stand-alone right to information not reliant on other rights.[22]
Access to information has been extensively link to the achievement of both transparency and accountability. Transparency can be implicitly understandd as ‘a means to achieve the end of a more responsive state that
more effectively achieves democratically agreed-upon ends’.[23] While its scope encompasses beyond access to information,[24] it is clear nonetheless that access to information plays a pivotal role in the achievement of transparency.[25]
[1]RogerVluegels, ‘Overview of all FOI Laws’, Fringe Special, (Date Accessed February 3rd 2021,4.50pm) http://www. right2info.org /resources/publications /laws-1/ati-laws_ fringe-special_roger-vleugels_ 2011-oct
[2] Council of Europe Convention on Access to Official Documents 2009, (Date Accessed February 3rd 2021,4.50pm) https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/205
[3] Human Rights Committee, General Comment No 34: Freedoms of opinion and expression (art. 19), 12 September 2011, CCPR/C/GC/34; 19 IHRR 303 (2012).
[4] UN Human Rights Committee, General Comment No 10: Freedom of expression (art. 19), 29 June 1983, HRI/GEN/1/Rev.1; 1-2 IHRR 9 (1994).
[5] Gauthier v Canada (633/1995), Merits, CCPR/C/65/D633/1995 (1999).
[6] Mavlonov and Sa’di v Uzbekistan (1334/2004), Merits, CCPR/C/95/D/1334/2004 (2009); 16 IHRR 650 (2009).
[7] UN Human Rights Committee, General Comment No 16: The right to respect of privacy, family, home and
[8] UN Human Rights Committee, General Comment No 32: Right to equality before courts and tribunals and
to a fair trial (art. 14), 23 August 2007, CCPR/C/GC/32; 15 IHRR 1 (2008).
[9] Supra Note.5
[10] (1877/2009), Merits, CCPR/C/96/D/1877/2009 (2009), at para 4.2.
[11] (1470/2006), Merits, CCPR/C/101/D/1470/2006 (2011); 18 IHRR 1039 (2011).
[12] Gauthier v Canada (633/1995), Merits, CCPR/C/65/D633/1995 (1999).
[13]Article 11 ACHR; Article 6 ECHR; and Article 7 European Charter of Fundamental Rights and Freedoms 2000/C 364/01.
[14] Guerra v Italy 1998^I; 26 EHRR 357.
[15]The Court went on to hold that this interference was not justified under the terms of Article 8(2) and
thus gave rise to a violation of Article8.
[16]2000-I; 27 EHRR 1.
[17]The Court found however that there was no violation of Article 8 as the State had met its positive obligations arising
under Article 8 by providing a procedure
for applying for the records in question which the applicants had not used.
[19]Roche v United Kingdom 2005-X; 42 EHRR 599.
[20]Article 1(2)(b)
[21] Application No 31475/05, Merits, 26 May 2009
[22]See www.right2info.org [last accessed 3 January 2013]
[23]Fenster,‘Seeing the State: Transparency as Metaphor’ (2010) 62 Administrative Law Review 617 at 623.
[24]Stirton and Lodge, ‘Transparency Mechanisms: Building Publicness into Public Services’ (2001) 28 Journal of Law and Society 471.
[25]Hale,‘Transparency, Accountability and Global Governance’ (2008) 14 Global Governance 73
Drop your comment