ACADEMY OF ECONOMIC STUDIES OF BUCHAREST
Council for Doctoral Studies
Doctoral School of Law
THE RIGHT TO INFORMATION –
BETWEEN GUARANTEES AND
LIMITATIONS
Summary of the PhD thesis
ALINA V. POPESCU
Doctoral Advisor: Professor MIHAI BĂDESCU
Bucharest, 2018
TABLE OF CONTENTS
Introduction
Title I
THE MULTIDISCIPLINARY DIMENSION OF THE RIGHT TO INFORMATION
1. INTRODUCTORY NOTIONS
1.1 General considerations on human rights
1.2 Information – an indispensable part of life and social evolution
1.3 The manipulation of information – a major influence on the right to information
1.4 Censorship – limitation of the right to information
2. INFORMATION AND SOCIETY. RELATIONS WITH SOCIOLOGY,
PSYCHOLOGY AND THE MEDIA
2.1 The role of information in the development of society
2.2 Information and social processes
2.3 Information and education of individuals
2.4 The media and information
2.5 The right to information and the environment
3. THE SOCIAL VALUE OF INFORMATION, FROM THE PERSPECTIVE OF
INFORMATION TECHNOLOGY AND ECONOMY
3.1 The influence of information technology on the development of society
3.2 The economic approach of information, as a part of social life
3.3 Administrative information – a social necessity
3.4 The notion of “good governance” from the perspective of the right to information
3.5 Information security
4. INFORMATION AND LAW
4.1 The right to information - a fundamental human right
4.2 A historical perspective on the right to information
4.3 The right to information and freedom of expression
4.4 The right to information and decisional transparency
Title II
GUARANTEES AND LIMITATIONS OF THE RIGHT TO INFORMATION
1. THE RIGHT TO INFORMATION IN THE CONSTITUTION OF ROMANIA
1.1 General considerations on the fundamental right to information
1.2 Guarantees of the right to information in the Romanian Constitution
1.3 The restrained exercise of rights or freedoms The constitutional limitation of the right
to information
2. FREE ACCESS TO INFORMATION OF PUBLIC INTEREST
2.1 General considerations on the notion of information of public interest
2.2 Access to information of public interest
2.3 Exceptions from free access to information of public interest
2.4 The Constitutional Court’s case law in terms of free access to information of public
interest
3. THE RIGHT TO INFORMATION AND PERSONAL DATA PROTECTION
3.1 General considerations on personal data protection
3.2 The legitimacy of personal data processing, in the context of the right to information
3.3 The right to information in the context of Regulation 2016/679 Elements of novelty
compared to the provisions of Directive 95/46/EC
3.4 The right to information, personal data processing and the protection of private life in
the field of electronic communications
4. THE RIGHT TO INFORMATION AND DISCLOSURE OF INFORMATION
SUBJECT TO STATE SECRECY, BUSINESS SECRECY OR WHICH IS NOT PUBLIC
4.1 General considerations on information subject to business secrecy or which is not
public
4.2 Limitation of the right to information for the protection of classified information
4.3 Limitation of the access to information in the field of witness protection
4.4 The incrimination of the disclosure of information subject to state secrecy, business
secrecy or which is not public, according to the Criminal Code
5. THE RIGHT TO INFORMATION IN LEGAL OR ADMINISTRATIVE
PROCEDURES
5.1 Guarantees and limitations of the right to information in the New Civil Code
5.2 The right to information in the civil procedure
5.3 Guarantees and limitations of the right to information in the criminal procedure
5.4 The dissemination and protection of fiscal information
6. REGULATIONS ON THE RIGHT TO INFORMATION IN VARIOUS FIELDS
6.1 The right to information in work relations Guarantees and limitations established by
the Labour Code
6.2 The general framework for employee information The right to information of
employees of European companies
6.3 The patient’s right to information
6.4 Limitation of the right to information in order to protect banking secrecy
7. THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS IN TERMS
OF RIGHT TO INFORMATION. A CASE STUDY – ROMANIA
7.1. General considerations
7.2. Crimes of insult and calumny – limitations of the right to information
7.3. Cases where the European Court of Human Rights has found that Romania has infringed art.
10 of the Convention
7.3.1. Case Dalban v Romania (1999)
7.3.2. Case Sabou and Pircalab v Romania (2004)
7.3.3. Case Cumpana and Mazare v Romania (2004)
7.3.4. Case Boldea v Romania (2007)
7.3.5. Case Barb v Romania (2008)
7.3.6. Case Folea v Romania (2008)
7.3.7. Case Bacanu v Romania (2009)
7.3.8. Case Ieremeiov v Romania (1) (2009)
7.3.9. Case Ieremeiov v Romania (2) (2009)
7.3.10. Case Antica v Romania (2010)
7.3.11. Case Papaianopol v Romania (2010)
7.3.12. Case Carlan v Romania (2010)
7.3.13. Case Dumitru v Romania (2010)
7.3.14. Case Andreescu v Romania (2010)
7.3.15. Case Cornelia Popa v Romania (2011)
7.3.16. Case Frasila and Ciocirlan v Romania (2012)
7.3.17. Case Tanasoaica v Romania (2012)
7.3.18. Case Ileana Constantinescu v Romania (2013)
7.3.19. Case Bucur and Toma v Romania (2013)
7.3.20. Case Bugan v Romania (2013)
7.3.21. Case Niculescu Dellakeza v Romania (2013)
7.3.22. Case Rosiianu v Romania (2014)
7.3.23. Case Cojocaru v Romania (2015)
7.3.24. Case Morar v Romania (2015)
7.3.25. Case Aurelian Oprea v Romania (2016)
7.3.26. Case Ghiulfer Predescu v Romania (2017)
7.4. Conclusions of the case study
Title III
THE RIGHT TO INFORMATION IN REGIONAL AND INTERNATIONAL
REGULATIONS
1. REGULATIONS ON THE RIGHT TO INFORMATION IN INTERNATIONAL
DOCUMENTS
1.1 Regional documents stipulating the right to information
1.1.1. America
1.1.2. Africa
1.1.3. South-east Asia
1.1.4. Europe
1.2 International documents on the right to information
2. THE RIGHT TO INFORMATION IN THE LEGISLATION OF OTHER STATES
2.1 South Africa (2012)
2.2 Argentina (1994)
2.3 Australia (1985)
2.4 Austria (2013)
2.5 Belgium (2014)
2.6 Bolivia (2009)
2.7 Brazil (2017)
2.8 Bulgaria (2015)
2.9 Canada (2011)
2.10 China (2004)
2.11 Czech Republic (2013)
2.12 Croatia (2013)
2.13 Denmark (1953)
2.14 Switzerland (2014)
2.15 Estonia (2015)
2.16 Finland (2011)
2.17 France (2008)
2.18 Germany (2014)
2.19 Greece (2008)
2.20 India (2016)
2.21 Iceland (2013)
2.22 Ireland (2015)
2.23 Israel (2013)
2.24 Italy (2012)
2.25 Japan (1946)
2.26 Latvia (2016)
2.27 Liechtenstein (2011)
2.28 Lithuania (2006)
2.29 Luxembourg (2009)
2.30 Macedonia (2011)
2.31 Malta (2006)
2.32 Great Britain (2013)
2.33 Mexico (2015)
2.34 Moldova (2016)
2.35 Monaco (2002)
2.36 Montenegro (2013)
2.37 Morocco (2011)
2.38 Norway (2016)
2.39 Netherlands (2008)
2.40 Poland (2009)
2.41 Portugal (2005)
2.42 Russia (2014)
2.43 Serbia (2006)
2.44 Slovakia (2014)
2.45 Slovenia (2013)
2.46 Spain (2011)
2.47 Sweden (2012)
2.48 USA (1992)
2.49 Turkey (2011)
2.50 Ukraine (2014)
2.51 Hungary (2016)
2.52 Venezuela (2009)
2.53 Conclusions
CONCLUSIONS OF THE RESEARCH AND PROPOSALS
1. Conclusions
2. Proposals of lege ferenda
BIBLIOGRAPHY
LIST OF ABBREVIATIONS
ANNEXES
ANNEX no. I
ANNEX no. II
ANNEX no. III
ANNEX no. IV
ANNEX no. V
ANNEX no. VI
Key words: right to information, freedom of expression, decisional transparency, private life,
legal protection, democratic operation of a state
Summary
Our research activity focused on the multidisciplinary dimension of the right to information,
respectively another approach compared to previous researches, that outlined the inextricable
relation between an individual’s right to information and his/her social evolution, as well as the
multiple side of information, i.e. economic, administrative, scientific information, etc. At the same
time, we presented and analysed how a citizen’s right to information, as a fundamental right, can be
affected through the manipulation or censorship of information.
We have investigated how Romanian legislation specific to various fields manages to strike a
balance between guaranteeing a citizen’s right to information and limitations to such right, for
reasons related to the protection of natural security, of public order, health or moral, of citizens’
rights and freedoms, to the dignity, honour and private life of individuals, to one’s right to their own
image, to the performance of criminal instruction, to the prevention of consequences of natural
disasters, catastrophes or very serious events.
From a legal point of view, the right to information and freedom of expression represent
fundamental political right in a democratic society. They are closely interrelated, and are also
connected to the evolution of society as a whole.
The right to information is a fundamental human right, guaranteed by international laws and
transposed into Romanian legislation. Scientific literature primarily approached the right to
information from the perspective of supplying public interest information, that citizens are entitled
to access. An approach of this fundamental right has to take all perspectives into account: the right
to scientific, administrative, cultural, economic information, etc. At the same time, we should
consider not only to guarantee the right to information, but also the protection of information, where
one should speak both of the legal protection and the physical protection of information.
Romanian society is undergoing a permanent transformation and adaptation to the
requirements and conditions of the EU, to whom it is a member. Civil Romanian legislation has
experienced deep transformations in the latest years, with the implementation of legal provisions
already established by EU and international laws. Though the right to information is a fundamental
human right, the exercise of this right also implies duties or responsibilities and may be subject to
restrictions. Restrictions must be explicitly provided by the law and limited to the achievement of
the goal they are imposed for, i.e. national security, territorial integrity or public safety, protection of
order and prevention of crimes, protection of the health, morals, reputation or rights of others, in
order to prevent the disclosure of confidential information or to guarantee the authority and
impartiality of the judicial power.
A widely debated aspect in democratically traditional societies refers to the transparency of
public institutions. When dealing with institutional transparency, one should consider that Romanian
society has been mostly oriented towards the opaqueness of institutions, a limitation of access to
information regarding the activity of public institutions and the decision making process. Integration
with Euro-Atlantic structures has resulted in the adoption of legislative acts guaranteeing the
students' right to information and freedom of expression. Likewise, the concept of "transparency"
has been explicitly established in the activity of public institutions.
However, for reasons related to the proper operation of such institutions and social relations as
a whole, both the right to information and freedom of expression can be subject to limitations, that
should be proportional to the situation generating them, that should be non-discriminating and,
especially, that should not affect the existence of the right or freedom itself.
Studies on the right to information aimed at identifying the theoretical and practical aspects
likely to affect its exercise, as well as how obligations related to the concerned right are guaranteed.
The research envisaged a multidisciplinary approach of the right to information, respectively its
reflection in labour, civil, commercial, criminal law, etc. and shows how subsequent legal
regulations may affect the exercise of such right.
I thought it was important to describe how this right has evolved in the legislation, from a
historical perspective, and I have outlined the value of observing the right to information, in terms of
decision making transparency and “good governance”.
Information plays an essential part in social progress, in promoting social values, also being
referred to as the “oxygen of democracy”. An individual’s right to information lies at the basis of
their participation in the life of society, in democratic responsibility and information must circulate
in free flow, in two directions, from society to citizens and the other way round.
As a whole, political rights and public freedoms are associated to the democratic operation of
state, where individuals may monitor and criticize public authorities, may receive information and
may express themselves freely, and transparency provides increased trust in social relations. Social
development consists of surpassing all obstacles against the freedom of individuals, and the
development of a society may be assessed through the extension of the citizens’ rights and freedoms.
All these freedoms, playing an essential part in an individual’s and in a society’s development, are
based on the free movement of information, since the lack of transparency and secret understandings
between governments, companies, banks, etc. may generate acts of corruption, generate mistrust
from social partners and affect the individuals’ freedom of decision and action. At the same time, an
individual needs information from the most diverse fields, with a significant impact on his/her life,
so as to achieve such freedoms.
Diverse approaches exist on freedom of expression and the right to information: these rights
are thought to prevail in front of individual rights in the United States, as shown in Anglo-Saxon
legislation. Most French-German law systems, instead, regulate a balance situation where rights are
subject to limitations, provided that such restrained exercise is well determined, “necessary in a
democratic situation”.
Starting from the idea that fundamental human rights and freedoms are untouchable, one
should remember that the observance and guarantee of the free exercise of such rights is not only the
state’s responsibility, but the responsibility of citizens themselves. States have to adopt the required
legal tools, and citizens must protect the idea of having these rights guaranteed and request their full
and unhindered exercise.
Information plays a very important part in all fields of social life and it should be guaranteed
that it is transmitted unaltered, as far as possible. The power of information is recognized, and how
it is used may result in social progress; at the same time, its malicious use may also result in
“unfavourable attitudes towards institutions and a decline of trust in governments”.
In terms of right to information, the parties’ interest must be “reconciled” and conflicts should
be “prevented” betwen information holders and legal beneficiaries. These aspects should be taken
into account by the state, as a guarantor of citizens’ right to information, when regulating access to
information of interest for citizens.
The scope of the right to information has experienced an extensive evolution in the latest
years, which has resulted in a diversification and multiplication of the categories of information of
interest for citizens. International, European and national legislation have evolved, i.e. they stipulate
more and more obligations to inform, in various fields of activity, and, even though constitutional
provisions and special laws have not been aligned to social evolution, various normative acts
(specific to each field of activity) have been adopted, establishing obligations for authorities, for
collective bodies, for managing bodies, for employers, etc. to inform (automatically) or to provide
certain information (upon request), which has guaranteed, in practice, a wider right to information.
Starting from these assumptions, we have investigated how Romanian legislation specific to
various fields manages to strike a balance between guaranteeing a citizen’s right to information and
limitations to such right, for reasons related to the protection of natural security, of public order,
health or moral, of citizens’ rights and freedoms, to the dignity, honour and private life of
individuals, to one’s right to their own image, to the performance of criminal instruction, to the
prevention of consequences of natural disasters, catastrophes or very serious events.
This part of the study has dealt with the guarantees and legal limitations of the right to
information, as reflected in Romanian legislation, according to international and European
provisions.
In most democratic countries and not only, this right is stipulated in legal texts at the highest
level (constitutional texts); however, unlike other rights, this is a relative right, not an absolute one,
being prone to restraints or limitations. The limitation of right to information should be proportional
to the interest that is protected by this restraint of the exercise of the right.
Exceptions of free access to information should be understood and interpreted both in a
restrictive and in an extensive meaning, on a case by case basis. Maintaining a balance between
guarantees and limitations of the exercise of the right to information is important in this legal
construct.
On a global level, international organizations and civil society recognize the importance of the
right to access information (also known as the right to know / droit de savoir). The mere
hypothetical existence of this right, by creating a legislative provision, is not enough; how access to
information actually takes place and whether the limitations of such right comply with European
case law and practices is at least as important.
I consider that the right to information is indeed likely to be subject to limitations, as, in the
wide framework of human rights (which are “universal, indivisible and interdependent”), the latter
should be approached in a balanced way, according to the idea of striking a balance between such
rights, all of an equal value, so that the exercise of a right by an individual does not affect another
right of other individual.
Another dimension of the fundamental right to information its its potential to mitigate
disparities between nations, between regions of the same state, between individuals in general. The
access to new information technologies, encouraging policies on free effective access to
information, may reinforce social development and encourage sustainable development.
One cannot talk of free individuals and democratic society in the absence of information, as
one cannot conceive citizen participation in social life without access to information.
In the wide context of guaranteeing human rights and the need for restraining the exercise of
some rights, the state, as the authority exercising power, should assimilate itself to this power at
some time, i.e. maintain the moral values to be protected, guarantee rights and freedoms and
maintain balance in terms of their limitation. Fundamental rights and freedoms should be exercised
within the legal limits and, especially, in good faith.
A chapter analyses the right to information from the perspective of the Romanian fundamental
law and we have analysed the principles lying at the basis of the restrained exercise of some rights
or freedoms: the general interest, the principle of legality, the principle of necessity, the principle of
proportionality, the principle of non-discrimination.
This limitation should not affect the existence of the right itself, and when the reasons for the
restraint no longer exist, the full exercise of the right or the freedom should be resumed.
I consider that, as citizens should be informed on the fundamental rights and freedoms they
have, they should also be made aware of the obligations they have and of the limitations such rights
and freedoms may be subject to. As we know, the Constitution is the main form of legal order, and
its efficiency, as well as the one of the subsequent legal rules, is actually measured through the
citizens’ and the institutions’ compliance with the norms it establishes.
The constitutional approach of the right to information is seen on three levels: guaranteeing
access to information, the authorities’ obligation to inform citizens and the media’s obligation to
inform correctly.
In the context of providing correct information to citizens, we have studied how the right to
information is affected by fake news, being aware that citizens need accurate information in order to
make informed decisions, so as to ensure their personal welfare and informed participation in public
life.
Any liberal state derives from or is based on the assertion of an individual’s natural and
inviolable rights. On the other hand, the establishment of a right as guaranteed in legislation results
in the reduction or limitation of other rights.
Article 31 paragraph (3) of the Romanian Constitution establishes generic limits of the right to
information, i.e. “it should not prejudice youth protection actions or national security”. One can
observe that the limitation of the right to information can only envisage two fields: youth protection
and national security. In this framework, we conducted a study to analyse the evolution of youth
protection actions in the context of the right to information.
In another chapter we analysed free access to information of public interest and, when
speaking of information of public interest, one should take into account all dimensions of this right,
i.e. looking for, receiving and disseminating information.
We also approached the exemptions from free access to information of public interest. In order
to harmonize the citizens’ right to information with the need for confidentiality of certain social
fields, the law may establish certain objectives to be protected from free access to information, in a
limitative manner, but without rendering the right void.
When raising an exemption from free access to information, one should analyse the content of
the information, not the containing document, and the deadline for exemption from free access
should be limited through normative acts too, so as not to promote an unjustified culture of secrecy.
Thus, as the threat to the protected value (national security, public order, etc.) is discarded, the
confidentiality of such information should be removed as well. The authorities should analyse
whether the danger still exists and whether the information still needs to be protected.
In this context, we analysed the case law of the Constitutional Court on Law no. 544/2001
and, even though we concluded that relevant legislation is likely to be amended, the Court has not
declared that any rule would be unconstitutional.
We also studied the relation between the right to information and the protection of personal
data. Personal data protection has been a constant focus of European bodies, in the wider area of
recognized fundamental rights and freedoms. We also dealt with the elements of novelty brought by
the enforcement of the Regulation (EU) 2016/679 - GDPR, the legitimacy of personal data
processing, in the context of the right to information, legal exceptions from the assurance of the
rights of the concerned individual in the context of personal data processing and privacy protection
in the sector of electronic communications, of curse related to the right to information and personal
data protection.
A chapter is devoted to the disclosure of information subject to state secrecy, business secrecy
or which is not public. We analysed the limitation of the right to information for the protection of
classified information, since, as the right to information is important for reinforced democracy, it is
also important to properly protect information whose unauthorized dissemination might create
serious damage. We have studied the limitation of the access to information in the field of witness
protection, which is a sensitive and important topic in the architecture of fight against serious crime.
At the same time, we have analysed and criticized some aspects of the incrimination of the
disclosure of information subject to state secrecy, business secrecy or which is not public, according
to the Criminal Code
A chapter was devoted to the right to information in judicial or administrative procedures. We
have analysed, on a selective basis, considering the dimension of the legislative act, the guarantees
and limitations of the right to information in the New Civil Code, with a focus on elements of
novelty, on those we have deemed to be controversial, on those having a more frequently found
practical applicability and on the obligation to inform within civil legal relations and the correlated
right to information, which does not belong only to the parties directly involved in civil law
relations, but also to third parties. The role of publicity in civil law is to make anyone acquainted
with the act, the fact or the right, thus ensuring that the act is enforceable, which is relevant in terms
of the right to information. The lack of publicity may result in the act being unenforceable against
third parties.
As for the right to information in the civil procedure, we are dealing with a potential conflict
between the right to information, the freedom of expression and the right to fair trial, as well as the
right to privacy. Democracy is exercised through both acts of justice and acts of information; this is
why a balance must be struck between the need for information and the need to protect other rights
and fundamental freedoms. The right to information cannot be unlimited, since one can do both
good and harm in the name of freedom of expression, and there is a risk that either the investigation
itself, or the rights and freedoms of other persons may be endangered within judicial procedures, as
the dissemination of information in the public space may cause damage.
We have studied the guarantees and limitations of the right to information in the criminal
procedure, where more sensitive issues are raised on access to information, unlike the civil
procedure, both in terms of the specificities of the criminal procedure and the interest of the media
and the audience for criminal issues. The criminal procedure has a non-public phase, where access
to information holds a special status, as it is only allowed to the parties, in order to ensure the right
to defence, and only general information is provided to the wide audience. All involved factors
should be aware of the need to observe procedure rules, professional secrecy, as well as the interest
of the audience and the latter’s need to be informed.
In our opinion, the dissemination and protection of fiscal information is of interest, as tax-
related issues are highly important in the life of citizens, with legal relations in this field having a
financial impact both on the individual and on the state budget. As for the collection of taxes from
taxpayers, a wide array of information on natural persons or legal entities is collected; in terms of
right to information, it is important to see how this information is protected and how public access to
it is allowed or limited. At he same time, taxpayers are entitled to be informed in the relationship
with tax authorities, so as to timely cover their tax obligations, as well as defend their rights in their
relation with the state.
We have analysed the right to information in several legislative areas, which have been
classified as having a practical interest. Thus, the right to information in labour relations, with the
guarantees and limitations established by the Labour Code, is important since the information
received by employees, employers, along with product beneficiaries, cultural and technological
changes, as well as changes in work procedures, the way how individuals have access to education
or professional reconversion, are likely to affect the labour market, to reorient the workforce, to
create new workplaces or an excess of labour. The labour market is, in turn, influenced by how
society evolves and changes in the society practically result in changes on the labour market.
In the context of the free movement of goods and services, a basic principle of the European
Union, I have considered that it would be interesting to analyse the general framework for employee
information and the right to information of employees of European companies. The employees’ right
to information is a significant component of social dialogue, as they need information both for their
own professional evolution, and for their involvement in the company’s operation.
We have thought that the patient’s right to information is relevant for this study, as it is a
particular case compared to the general normative framework. In order to ensure the patient’s trust
in the health system and to guarantee protection, patients’ rights must be regulated and useful and
adequate information should be provided, so that the decision is made in full awareness. Patients
should also be guaranteed the confidentiality of the information regarding them, as part of their
fundamental right to private life, away from unwanted interference.
In my opinion, another relevant issue is the limitation of the right to information in order to
protect banking secrecy. Banking secrecy has experienced changes across the times, with social
evolution; such changes have been reflected by the legislation. This “obligation of discretion” is
needed so that banking operations may take place in an environment of safety and trust.
Analysing the legislations of the 52 states, we may conclude that, one way or another, the right
to information is guaranteed by law, with a focus on access to information of public interest. 37
states establish the right to information in their Constitution, and 13 states stipulate the right of
access to information in their laws. Two of the analysed states, the Duchy of Luxembourg and the
Principality of Monaco, regulate the right to information neither in their Constitution, nor in a
different normative act. However, according to the statistics1, during 1959-2017, ECHR has found
no infringement of art. 10 by Monaco, and only three infringements of art. 10 by Luxembourg.
It is interesting to see that some states even guarantee the consumers’ right to information,
their right to environmental information, their right to information on personal data, etc. in their
constitution, which shows the high importance of the generic right to information.
As a fundamental right, the right to information is assigned suitable legal protection, with the
establishment of legitimate limits for the exercise of such right, so as to strike a suitable balance
between this right and other fundamental rights and freedoms.
Most of the conclusions of the study are proposals of lege ferenda, with a view to harmonizing
already existing provisions or to bring these normative requirements closer to social evolution.
CONCLUSIONS OF THE RESEARCH AND PROPOSALS
1 See Annex no. V.
1. Conclusions
Information plays an essential part in social progress, in promoting social values, also being
referred to as the “oxygen of democracy”. An individual’s right to information lies at the basis of
their participation in the life of society, in democratic responsibility and, as shown in the study,
information must circulate in free flow, in two directions, from society to citizens and the other way
round.
As a whole, political rights and public freedoms are associated to the democratic operation of
state, where individuals may monitor and criticize public authorities, may receive information and
may express themselves freely, and transparency provides increased trust in social relations. Social
development consists of surpassing all obstacles against the freedom of individuals, and the
development of a society may be assessed through the extension of the citizens’ rights and freedoms.
Diverse approaches exist on freedom of expression and the right to information: these rights
are thought to prevail in front of individual rights in the United States, as shown in Anglo-Saxon
legislation. Most French-German law systems, instead, regulate a balance situation where rights are
subject to limitations, provided that the restrained exercise of a right is well determined.
Starting from the idea that fundamental human rights and freedoms are untouchable, one
should remember that the observance and guarantee of the free exercise of such rights is not only the
state’s responsibility, but the responsibility of citizens themselves. States have to adopt the required
legal tools, and citizens must protect the idea of having these rights guaranteed and request their full
and unhindered exercise.
Information plays a very important part in all fields of social life and it should be guaranteed
that it is transmitted unaltered, as far as possible. The power of information is recognized, and how
it is used may result in social progress; at the same time, its malicious use may also result in
“unfavourable attitudes towards institutions and a decline of trust in governments” (Mattelart, 1978:
3-49).
Debates have been held on historical information transmitted from one generation to another,
on how much of it is real and how much is a lie. Some authors argue that totalitarian states have
mystified historical information depending on momentary interests, while democratic states left
history at the discretion of research or historians; however, distortions in the transmitted information
may appear in this situation as well, as information can be affected by the approach of each person
investigating historical facts. Likewise, there is an issue on how the audience perceived information
as “a historical truth”; the author argues that, sometimes, historical information presented in a
renowned film or book may remain in the “consciousness of the audience” as more truthful than
information provided by scientific research.
In terms of right to information, the parties’ interest must be “reconciled” and conflicts should
be “prevented” betwen information holders and legal beneficiaries. These aspects should be taken
into account by the state, as a guarantor of citizens’ right to information, when regulating access to
information of interest for citizens.
In order to facilitate access, Romanian legislation explicitly provides that information of
public interest should be made available free of charge (with photocopying services being charged,
if applicable). However, situations were found in practice where information was requested in a
different format than the one the public institution had it in (for instance statistics on criminal
phenomena, other than those collected by the police, were requested) or the requested data referred
to a period of more than 25 years (for instance, a press institution requested, in 2016, data on the
prevention campaigns organized from 1990 to the present days). In my opinion, legislation is flawed
as regards these topics, which need to be regulated; of course, clearer guidelines should be
established in the spirit of law, i.e. not limiting access to information and allowing the participation
in decision making.
I think that legislation should stipulate that the information will be provided to the applicant
in the format held by the institution (so as not to disturb the organization’s current activity), and
requests should refer to a determined period of time (e.g. 3 years). According to the catalogue,
institutions do not keep certain non-secret documents for more than 3-5 years, and, as regards the
utility of this information, in terms of public interest, I do not think that information that could have
been the basis for administrative decisions many years ago (25 years in the previously presented
case) is still of actuality. Social and economic conditions have changed a lot in such a long time, so
that information is completely outdated, and the basis for adopting the relevant solution at that date
no longer exists.
As shown throughout our research, the evolution of information technology and quick social
changes result in information becoming obsolete after 3/5 years. It is important that information is
public as close to its appearance as possible, so as to meet its role of transparency and prevention of
corruption, as well as its role of decisional support.
Moreover, difficulties in evolution and operation may appear in the economic environment,
when economic actors lack actual information in their field of activity (by this I mean information
on the markets, stakeholders, opportunities, etc., as well as technological information, know-how,
the last gains in the field of technical and scientific development).
We notice that social and cultural information plays, in turn, a very significant part in the
evolution of individuals and society, as the basis for building an individual’s social behaviour and
state organization. The state must ensure the guarantee of objective debates, the achievement of the
right of access to information and culture, and the higher education environment should be a major
way to convey information, especially scientific information.
The scope of the right to information has experienced an extensive evolution in the latest
years, which has resulted in a diversification and multiplication of the categories of information of
interest for citizens. International, European and national legislation have evolved, i.e. they stipulate
more and more obligations to inform, in various fields of activity, and, even though constitutional
provisions and special laws have not been aligned to social evolution, various normative acts
(specific to each field of activity) have been adopted, establishing obligations for authorities, for
collective bodies, for managing bodies, for employers, etc. to inform (automatically) or to provide
certain information (upon request), which has guaranteed, in practice, a wider right to information.
In terms of protection of under age individuals, in the context of the right to information, self-
regulation measures adopted by service providers should be supplemented with measures to inform
and educate parents and educators, as well as suitable means of legal protection, so as to strike a
balance between the children’s and the youth’s right to information and access limitation measures,
adapted to the state of development of technology. Internet censorship is impossible; it is not just
illegal, but also excessive, which is why only complementary measures may result in efficient
protection of under age individuals.
As for the creation of a safe cyberspace, the efforts of governmental factors, private
environment and citizens must converge to create a culture of security. Organizations should adopt
suitable protection measures, periodically re-evaluate risks and vulnerabilities and train their staff
for the observance of such measures (legal, technological, physical measures, etc.). The citizens’
right to information may be observed, in the cyber security field, if information is provided in a
timely manner, in an accessible form in terms of content (considering the technicality of
information), so that it may be used. The importance of cyber security is indisputable; cybernetic
systems are part of everyone’s life, in almost all fields of activity, and these protection measures
should be balanced with the other rights and freedoms of users. We may conclude that “Cyber
security is not an option; it is a necessity”2.
In terms of regulated markets, information plays a fundamental part, which is why a balance
is needed between the right to information and the protection of sensitive or privileged information,
since the illegal use of such information is harmful for business interests. The guidelines for the
regulation and limitation of access to information must be strict and their enforcement should be
2 Speech by ENISA’s Executive Director, Prof. Dr. Udo Helmbrecht – “Framework of Trust in the Data Economy
Strengthening IT security in Europe”, https://www.enisa.europa.eu/publications/ed-speeches/framework-of-trust-in-the-
data-economy-strengthening-it-security-in-europe, GDV Annual Congress, Bonn, Germany, November 2017,
23.11.2017
monitored by supervisory bodies. The investors’ right to information should be correlated to the
obligations to keep professional secrecy, the confidentiality of data obtained by virtue of business
tasks, as well as personal data protection. The transparency of capital markets is a guarantee of a fair
business environment, providing reliable services.
As for the information society, services should be accessible to as many users as possible, as
this is the only way to guarantee the citizens’ right to information. The state should adopt the
required measures to ensure the existence of a fair, strictly regulated and transparent competitive
market. This is how cost reduction can be ensured, which increases the accessibility of such services
and ensures an accurate information of users regarding their rights and obligations, the benefits of
the technological process and the utility of acquiring the features needed for the use of such services.
In terms of referendum organization, a accurate and adequate information of citizens will
ensure a democratic result of this tool, by reducing irregularities in the electoral process.
Information should be relevant and useful for decision making by the voters, so as to manage to
fight excesses and achieve social balance. Participative democracy proves its utility only this way,
and the outcome is convincing and useful for society as a whole and for individuals as well.
In terms of protection of intellectual property rights, connected to guaranteeing the right to
information, one can talk about an interdependence, as individuals need information, knowledge that
circulates freely, innovative products and services, the outcomes of scientific research, etc. At the
same time, the author’s right to suitable legal protection (moral and material) should be considered,
as this is the only way to stimulate creative acts.
The consumers’ right to information is an essential right (as noticed, some states even
guarantee it in their constitution); this right provides citizens with the possibility to decide, on an
informed basis, in agreement with their ethical, social, economic, ecological belief, etc., and the
legislative acts in this field must be able to harmonize the interests of consumers with the interests of
manufacturers of goods and service providers (of the market as a whole). Information should be
clear, understandable by users, legible, along with the concern of not generating too high costs for
manufacturers. “Consumers have privileges”3, additional rights, which they must be aware of and
whose observance they should be able to request.
An analysis of how European provisions in the field of electronic commerce have been
transposed to national legislation shows that normative acts lack the required clarity, and they
should be re-analysed, aligned and a Consumers’ Code should be drafted, so as to ensure a unitary,
lean, user-friendly normative framework.
3 D. Cartron III – “Les moyens de défense des consommateurs”. In: Revue juridique de l'Ouest, 1992-4. pp. 510-518;
doi: 10.3406/juro.1992.4048, http://www.persee.fr/doc/juro_0990-1027_1992_num_5_4_4048
Personal data and privacy protection is a more and more important concern for the
development of communication and information technology; their protection should be balanced
with guaranteeing the right to information and freedom of expression. The adoption of legislative
measures is not enough to achieve this; it is also important that the virtual space should be able to
self-regulate itself (by establishing rules for the protection and guarantee of the users’ rights and
freedoms). Moreover, internet users should be informed and educated with a view to adopting self-
protection measures (especially to provide as few personal data as possible). Furthermore, the media
should observe professional deontology and we underline the importance of the firm enforcement of
(criminal, civil or administrative) sanctions in case of serious infringements of the right to private
life, which may have a preventive role.
Regulation in the Civil Code, Book I - On people, Title II - Natural persons, an entire chapter
for human rights, i.e. Chapter II - The respect for human beings and their inherent rights, are
innovative at the civil level, thus achieving the alignment to European legal theory and practice. The
rules are the basis for the civil liability of persons infringing these fundamental rights (right to
freedom of expression, right to private life, right to dignity, right to one’s own image). As for the
right to information, it should be exercised, according to article 14 of the New Civil Code, in good
faith, in agreement with public order and good habits; good faith is presumed unless otherwise
proven.
As for companies, Law no. 31/1990 rep. includes the required guarantees on the right to
information in this field, transposing international principles and relevant good practices. On the one
hand, the text guarantees the provision of suitable, pertinent, useful and actual information; on the
other hand, it ensures an effective protection of the economic interests of entities, by guaranteeing
commercial secrecy and protecting confidential information. The normative act ensures a balance
between the interests of holders of the right to information and the interests of the company
(requests for information should not be excessive, unreasonable or able to do harm).
Romania aims at becoming a member of the OECD4, which suggests that corporate
governance principles and policies should be already implemented, so as to achieve decision
making transparency and a reliable business environment. The amendment of normative acts should
be a step towards achieving these objectives; this is why I consider that amendments to the draft law
no. 506/2017 should be adopted, i.e. the legislative proposal on the establishment of the Sovereign
Development and Investment Fund and on the amendment of normative acts. The proposed
amendments would refer to maintaining the obligation to publish relevant information on the
4 Romania’s goal is to become a full member of the OECDhttp://gov.ro/ro/media/comunicate/guvernul-romaniei-a-fost-
reprezentat-la-consiliul-oecd-de-la-paris&page=2, 18.03.2018
website (guaranteeing the citizens’ access to information) and including clear transparency
principles, determined deadlines for the publication of information (as provided in Government
Emergency Ordinance no. 109/2011), as well as avoiding vague legislative wording, such as “timely
reported”. Increased transparency in public company management guarantees the right to
information, protects the rights of minority shareholders, is an assurance that the decisions of a
majority shareholder are not abusive or contestable, helps identify and prevent the improper use of
public funding and ensures the citizens’ participation in decision making.
The right to information is affected by information alteration technique; it is essential for
information provided to citizens to be real, provided in a timely manner, diverse, useful and reliable,
and it should be drawn up in good faith. The so-called “fake news” is a risk against the fundamental
right to information and cannot be fought by legislation exclusively. A return is needed to the
professional deontology of journalists and to the recognized values of the profession, to the self-
censorship of bloggers, influencers, to the accurate check of information, so as to achieve the goal of
correctly informing public opinion. Moreover, the contribution of each of us is significant, by
performing a minimal check of the information we send further on. The authorities’ involvement is
essential, as they must communicate the adopted decisions in a transparent manner and they must
fight fake news by public communication.
The right to environmental information is not enough to achieve environment protection and
sustainable development. Informing and educating citizens, as well as making them adopt an
environment-friendly behaviour and take part in environmental decision making, still remains an
important challenge for authorities. Information provided to the public should be accurate, real,
actual, outline the effect of certain events upon the community. Considering the existence of a
satisfactory normative framework, the authorities should focus their efforts towards the automatic
dissemination of as much information as possible, so that people are acquainted with sustainable
development concepts, policies and measures.
The recognized need for information should not turn into an excess of information, and
freedom of information should not become “freedom to disinform in order to manipulate” (Cucu
2013: 178). The corollary of free access to information should be a balance between
transparency, the need to know and the observance of the others’ rights and freedoms, as well
as ensuring the proper development of institutions.
We may conclude that the citizens’ right to information is matched by a correlated
obligation to inform, which is borne both by the state and by other social actors.
2. Proposals of lege ferenda:
Even though it includes a regulation of the right to information, I believe that, in a
future amendment of the constitution, the content of art. 31 of the Romanian Constitution should
be updated, i.e. restated as follows:
(1) An individual’s right to search, receive, store and disseminate information cannot be
limited.
(2) The access of people to information of public interest is guaranteed. Public
authorities are bound to ensure the correct information of citizens on public issues and issues of a
personal interest.
Law no. 544/2001 on free access to information of public interest has been an
element of modernisation of the Romanian state and law when it was adopted; however, after almost
17 years, I consider that a new regulation is needed, that removes the identified inaccuracies, that
brings the text of law closer to the current moment. Thus, based on the arguments presented in the
study, I propose:
To determine information categories as follows: information of public interest,
confidential information (not secret, but not public either) and classified information;
To define the category of confidential or not public information;
To repeal letters g and h of article 5, respectively to discard the obligation to publish
certain categories of documents (“list including documents of public interest”, “list including
categories of produced and/or managed documents, according to the law”).
To repeal provisions regarding the obligation to provide the following elements:
name, surname and signature, as parts of requests for information (except for the case stipulated
under art. 6 par. (3) (b));
To restate the provisions under art. 12 (a) and (b), i.e. the text of the law should refer
to “classified information” generically, as it is awarded increased legal protection, and lists with
such information have been drawn up; confidential information in the envisaged fields should be
exempted “for as long as access to it represents a potential danger” for the protected legal value;
To include a provision on the supply of information on demand, that sets a reasonable
term (3-5 years) the applicant may request information for, and, when the applicant imposes a
certain format in his/her demand, and this implies an excessive effort for the institution (in terms of
time and costs), the information should be provided in the format held by the institution.
As for the protection of persons regarding personal data processing and free
movement thereof, I propose to adopt a normative act regulating how a fair balance is achieved
“between personal data protection and the right to freedom of expression and information”
(according to the GDPR recommendation under point 153 of the preamble). The objective could
also be achieved by amending and supplementing Law no. 504 of July 11, 2002 - the Audiovisual
Law and Law no. 544/2001 on free access to information of public interest.
Regarding Law no. 182/2002 on the protection of classified information, I
consider that, upon a future legislative change, the classification of information should be revisited,
so that it is exclusively limited to information related to national security, according to NATO and
EU procedures, and information that is confidential or not public and whose disclosure may affect “a
public or private legal entity” should also be defined, distinctly from classified information.
I consider that a future legislative amendment should envisage the amendment of the
provisions of art. 60 of Government Decision no. 760/2004 on the approval of the Regulation for
the enforcement of Law no. 682/2002 on witness protection, respectively the alignment to Law
no. 182/2002 on the protection of classified information, and the new provision should stipulate that
“orders, instructions, provisions and internal guidelines drawn up based on and for the enforcement
of these rules are classified information, in the ;business secrecy’ category”.
Regarding a future change of the Criminal Code, I support the following:
Amending art. 304 par. (2), which can be stated similarly to the provision in the former
Criminal Code, “If the deed stipulated under the previous paragraph is perpetrated by another
person, irrespective of how s/he has become aware of the data or information, the punishment is
(...)”.
Considering the definition of information subject to state secrecy and aiming at achieving
protection in compliance with the law, I think that art. 305 par. (1) of the Criminal Code should be
supplemented with the phrase “if this has affected national security and national defence”, to discard
arbitrariness in the interpretation of the legal text;
Repealing art. 305 par. (2) and classifying the disclosure of business secrets or non-public
information as a crime only when this is done intentionally. It is enough to protect accidental
disclosure through disciplinary measures or sanctions;
Redefining the concept of “information not meant to be made public” of art. 1871, if the draft
law is adopted as such, for the notion to cover all information that is not meant to be public, not only
classified information.
For the reasons analysed in the section devoted to the Criminal Procedure Code, I
consider that a future change of relevant legislation should envisage the removal of the following
phrase from art. 369 par. (6): “unless the meeting was not fully or partially public”.
In my opinion, for the reasons presented in the section devoted to the Fiscal
Procedure Code, the following are needed:
Regulating how the holder of information subject to professional secrecy agrees for it
to be disclosed to third parties (art. 11 par. (3) (d));
Repealing art. 11 par. (5) (a) of the Fiscal Procedure Code;
Supplementing the text of art. 11 par. (8) (b) with the phrase “if the information is of
public interest”;
Art. 162 being amended and correlated to the provisions of article 11 as follows:
“(1) Upon request, tax bodies may provide information on debtors who are legal entities with
outstanding tax obligations, as well as the amount of such obligations.
(2) Debtors who are legal entities are entitled to be informed, on demand, whether their fiscal
data have been provided to third parties, explicitly mentioning the requesting entity”.
As for the Labour Code, under art. 40 par. (2) (d), I propose that a future version
should include the phrase “confidential information or information subject to business secrecy”,
which would be correlated with the obligation stipulated under art. 39 par. (2) and with the
legislation in the field of classified information.
Regarding Government Emergency Ordinance no. 99/2006 on credit institutions
and capital adequacy, in terms of professional secrecy protection, I would consider that, in a future
legislative amendment, art. 112 par. (2) should be restated as follows: “The persons stipulated under
par. (1) are not entitled to use or disclose, during the activity or after its termination, information in
the category of those stipulated under art. 111”.
As for art. 5 par. (2) of Government Emergency Ordinance no. 109/2011 on the
corporate governance of public companies, I propose the following addition: “Annual financial
statements and biannual accounting reports, reports of the managing board or of the supervisory
board as the case may be and the annual audit report are kept on the website of the public company
for at least 3 years. After this period, they may be provided upon request, but for no more than 5
years.”
Unifying legislation on consumer protection, by adopting a Consumers’ Code.
