A top QC believes the media’s right to access to information has “come of age” over the last year.

Hugh Tomlinson QC says the right to receive information has now been specifically recognised in European and English case law – beyond, and in addition to, the existing entitlement under the Freedom of Information Act (FoIA).

The new right could lead to freer media access to information from public inquiries and institutions that are not currently subject to the FoIA but whose activities have an impact on society and are of genuine public interest.

It could even provide a basis for obtaining more information from certain private companies – for example Network Rail, which receives billions of pounds of taxpayers’ money each year but is not subject to FoIA.

Although the general right to freedom of expression under Article 10 of the European Convention on Human Rights has for years provided a right to “receive and impart information” without interference by public authority, previous case law has focused more on the right to impart than the right to receive.

When broadcasters unsuccessfully applied for permission to televise the Shipman and Hutton inquiries in 2001 and 2003 respectively, they were told Article 10 did not provide a right of access to information that “another holds and does not wish to impart”.

But the legal position changed dramatically last year with a case taken to the European Court of Human Rights (ECtHR) by the Hungarian Civil Liberties Union.

The Hungarian government had refused to give it access to details of a complaint made in connection with a government policy.

The ECtHR said the right to freedom to receive information basically prohibits a government from restricting a person from receiving information that others wish or may be willing to impart to him. The court noted that the requested information was “ready and available…and did not require the collection of any data”.

It concluded: “Therefore, the Court considers the State had an obligation not to impede the flow of information sought by the applicant.”

This European lead was picked up by our Court of Appeal in a landmark case called A. v Independent News & Media Ltd in which the media were allowed access to a hearing in the usually private Court of Protection regarding the financial affairs of a musician suffering learning difficulties.

The appeal court held that the right to receive information was particularly strong where the press sought details for “public purposes” in its role as a public watchdog, and also where the information related to Court proceedings.

This new approach is utterly different from the antiquated decisions in the Shipman and Hutton inquiries, where the media’s Article 10 rights were said not to be engaged at all.

The new right to access to information is expected to strengthen the hand of the media and the public in FoIA requests.

When a public authority weighs up whether the public interest in releasing information outweighs the public interest in withholding it under one of the Act’s so-called ‘qualified exemptions’, it will now have to take into account the newly recognised right to receive information.

The right could even serve to undermine the ‘absolute exemption’ that is otherwise generally applicable to confidential information under FoIA – by boosting public interest considerations for overriding such confidentiality.

It could bolster access to information at public inquiries and the like, which may yet be persuaded to allow in the TV cameras.

Writing on Inforrm’s blog last week, Mr Tomlinson said: “The important point is that the international and domestic case law increasingly point to the existence of a freestanding “right to information”, a right independent of the FoIA.

“This right can now be invoked by the press and others in areas not covered by the statute. The right to information has now come of age.

“It is likely to be developed in a range of different areas over the next few years.”