Balancing privacy and the public interest: The application of the 'general measures' doctrine in 'L.B. v Hungar' in the absence of any substantive proportionality assessment: ECtHR 9 March 2023, No. 36345/14, 'L.B. v Hungary'

Abstract

On 9 March 2023, the Grand Chamber of the European Court of Human Rights (the Court) delivered its judgment in L.B. v Hungary.Footnote 1 The case concerned the Hungarian legislative policy of publishing on the tax authority’s website the personal data of taxpayers who were in debt. The applicant claimed that the publication of his name and home address on a list of ‘major tax debtors’ was a violation of his right to private life under Article 8 of the European Convention on Human Rights (the Convention; the ECHR).

Finding in favour of the applicant, the Court criticised the quality of the Hungarian parliament’s review of the impugned measure. The Grand Chamber’s approach can be seen as an application and extension of the already controversial ‘general measures’ doctrine developed in Animal Defenders International v the United Kingdom. Footnote2 Previously, in Animal Defenders, the quality of parliamentary review had been judged favourably, prompting the Court to extend significant deference to domestic authorities in reviewing the proportionality of the measure. In L.B. v Hungary, however, this approach was expanded and applied in reverse: dispensing with any assessment of the substantive impact of the measure on the applicant, the Grand Chamber found that Article 8 had been violated due to the inadequate domestic review thereof.

The approach adopted by the Court was a controversial one, criticised by Judge Kūris in his concurring opinion and by Judges Wojtyczek and Paczolay in their joint dissenting opinion. In this case note, I will first set out the factual background of the case before explaining how it was dealt with by the Chamber and the Grand Chamber. I will strive to contextualise the decision within the broader context of the ‘procedural turn’Footnote 3 detected in the Court’s jurisprudence in recent years and compare the approach applied here to the Court’s ruling in Animal Defenders. Finally, I will reflect on the potential implications of the development and argue in favour of the finding of a violation based on an alternate or amended approach.