Restriction of the right to information in the interests of national security: The problem of justification

Abstract

The relevance of this study is conditioned upon the lack of a single theoretical justification for limiting the right to information, even though Ukrainian legislation allows such limitations in the Constitution. The purpose of this study was to analyse certain cases of restrictions on the right to information in the interests of national security and determine ways to justify such restrictions. The methodological framework of this study included the analysis of law enforcement practices concerning the restriction of the right to information. The study established that, despite a considerable theoretical basis in protection of human and civil rights and freedoms, the modern practice of administrative courts is based only on providing a legal assessment of the actions of the Security Service of Ukraine regarding the recognition of information and other activities of the subject of information relations as illegal in the light of the powers and advantages granted to the Service pursuant to Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The absence of a single mechanism for restricting the right to information in the interests of national security was proved. The paper substantiated that the courts and state bodies of Ukraine, which are responsible for regulating information activities, have not yet developed their own ways and mechanisms for restricting the right to information, which would factor in their practice of providing a legal assessment of each of these cases. It was noted that the basic means of justifying the restriction of the right to information in the interests of national security, as well as any restriction of the right to information, is the use of a “three-part test”. The outlined grounds for localizing the right to information will be useful for scientists, law enforcement officers, and information security specialists for their legitimate application.