In its Grand Chamber judgment of 14 February 2023 delivered in the case Halet v. Luxembourg, the European Court of Human Rights reiterated that the protection enjoyed by whistle-blowers under Article 10 of the Convention was based on the need to take account of features that were specific to the existence of a work-based relationship: on the one hand, the duty of loyalty, reserve and discretion inherent in the subordinate relationship entailed by it, and, where appropriate, the obligation to comply with a statutory duty of secrecy; on the other hand, the position of economic vulnerability vis-à-vis the person, public institution or enterprise on which they depended for employment and the risk of suffering retaliation from them.
The Court also pointed out that, to date, the concept of “whistle-blower” had not been given an unequivocal legal definition and that it had always refrained from providing an abstract and general definition. Thus, the question of whether an individual who claimed to be a whistle-blower benefited from the protection offered by Article 10 of the Convention called for an assessment which took account of the circumstances of each case and the context in which it occurred.
In this connection, the Court decided to apply the review criteria defined by it in the Guja v. Moldova judgment delivered by the Grand Chamber on 12 February 2008 in order to assess whether and, if so, to what extent, an individual who discloses confidential information obtained in the context of an employment relationship could rely on the protection of Article 10 of the Convention. In addition, conscious of the developments which had occurred since the Guja judgment was adopted in 2008, whether in terms of the place now occupied by whistle blowers in democratic societies and the leading role they are liable to play, the Court considered it appropriate to confirm and consolidate the principles established in its case-law with regard to the protection of whistle blowers, by refining the criteria for their implementation in the light of the current European and international context.
Guja v. the Moldova The applicant, who was at the time the Head of the Press Department of the Moldovan Prosecutor General’s Office, complained about his dismissal from the Prosecutor General’s Office for divulging two documents which disclosed interference by a high- ranking politician in pending criminal proceedings.The Court held that there had been a violation of Article 10 of the Convention in the present case.
“Being mindful of the importance of the right to freedom of expression on matters of general interest, of the right of civil servants and other employees to report illegal conduct and wrongdoing at their place of work, the duties and responsibilities of employees towards their employers and the right of employers to manage their staff, and having weighed up the other different interests involved in the present case, the Court came to the conclusion that the interference with the applicant’s right to freedom of expression, in particular his right to impart information, was not ‘necessary in a democratic society’”
Wojczuk v. Poland concerned the conviction in 2012 of the applicant, an art historian, who had been employed by the Museum of Hunting and Horse-riding between 1997 and 2008, libel against the museum for four anonymous letters allegedly sent by him which were critical of the museum’s management. He complained that his criminal conviction had been disproportionate and unjustified. In the present case, the Court did not find that the letters in question could be deemed to constitute whistle-blowing. It held that there had been no violation of Article 10 of the Convention in respect of the applicant, finding that the domestic courts had adduced sufficient and relevant reasons to justify the interference with the applicant’s freedom of expression.
Langner v. Germany concerned the applicant’s dismissal from his job in a municipal housing office after accusing the deputy mayor of “perversion of justice” both orally at a staff meeting and in subsequent written comments to the applicant’s hierarchical superior.
The Court considered that the applicant’s case was not a “whistle-blowing” case that warranted special protection under Article 10 of the Convention. It noted in particular, in this regard, that instead of addressing his concerns about the deputy mayor’s decision to the mayor or the prosecuting authority, the applicant had raised them at a staff meeting some two years later.
In Hadjianastassiou v. Greece, the court held that the state had a wide margin of appreciation in relation to national security issues. The applicant had been convicted of having disclosed military secrets. Although they were of minor importance, by its nature, any disclosure of state secrets may undermine national security and the Convention was not breached.
The Observer v United Kingdom, and Sunday Times v. United Kingdom, concerned injunctions sought by the United Kingdom restraining the publication of a book by a former spy. It was ruled by the majority that the risk of material prejudicial to national security existed and applied the exemption. After the importation of foreign newspapers, the ground could no longer be relied on since the information was freely circulating in other countries.
Several cases have involved so-called whistle-blowers/state employees who criticised government policies or actions. Restrictive actions in the protection of state interests is permissible but must be proportionate.
To Whom Made
The person’s motives and ability to substantiate the claims are important considerations. Where the disclosure is made to a narrow category of persons such as immediate superiors, a greater degree of tolerance must be permitted. The court has tended to hold against preserving the confidentiality of official wrongdoing.
In Guja v. Moldova, the applicant was the head of the Moldovan prosecutor general’s office. He leaked papers from a government minister seeking the termination of prosecutions against police officers. He was dismissed.
“The court notes that a civil servant, in the course of his work, may become aware of in-house information, including secret information whose divulgence or publication corresponds to a strong public interest. The court considers that the signalling by a civil servant or an employee in the public sector of illegal conduct or wrongdoing in a public place should, in certain circumstances, enjoy protection. This may be called for where the employee or civil servant concerned is the only person or part of a small category aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large”.
“In light of the discretion owed by him, the disclosure must be made in the first place to the person’s superior or other competent authority or body. It is only when this is clearly impracticable that the information could, as a last resort, be disclosed to the public… In assessing whether the restriction on freedom of expression is proportionate, the court must take into account whether that was available to the applicant any the other effective means of remedying the wrongdoing which he intended to uncover.”
Heinisch v. Germany concerned the dismissal of a geriatric nurse after having brought a criminal complaint against her employer alleging deficiencies in the care provided. The applicant complained that her dismissal and the courts’ refusal to order her reinstatement had violated her right to freedom of expression.
The Court held that there had been a violation of Article 10 of the Convention, finding that the applicant’s dismissal without notice had been disproportionate and the domestic courts had failed to strike a fair balance between the need to protect the employer’s reputation and the need to protect the applicant’s right to freedom of expression.
The Court noted in particular that, given the particular vulnerability of elderly patients and the need to prevent abuse, the information disclosed had undeniably been of public interest. Further, the public interest in being informed about shortcomings in the provision of institutional care for the elderly by a State-owned company was so important that it outweighed the interest in protecting a company’s business reputation and interests.
Gawlik v. Liechtenstein concerned a doctor who raised suspicions that euthanasia had been taking place in his hospital. In particular, it could not reasonably be expected of a person having lodged a criminal complaint in good faith to anticipate whether the investigations would lead to an indictment or be discontinued. In the applicant’s case, the Court held that there had been no violation of Article 10 of the Convention, finding that the interference with his rights had been proportionate.
While noting that he had not acted with improper motives, the Court nevertheless found that the applicant had been negligent in not verifying information. It therefore considered that the applicant’s dismissal had been justified, especially given the effect on the hospital’s and another staff member’s reputations.
Top Secret v Wrongdoing
Bucur and Toma v. Romania The first applicant, who worked for the Romanian Intelligence Service (RIS), had been convicted for divulging information classified “top secret”. He had released audio cassettes at a press conference containing recordings of the telephone calls of several journalists and politicians, together with incriminating elements he had noted down in the register of conversations.
The Court held that there had been a violation of Article 10 of the Convention in respect of the first applicant, finding that the interference with his freedom of expression, and in particular with his right to impart information, had not been “necessary in a democratic society”. As to the damage done to the RIS, the Court considered that the general interest in the disclosure of information revealing illegal activities within the institution was so important in a democratic society that it prevailed over the interest in maintaining public confidence in that institution.
Lastly, there was no reason to believe that the applicant was driven by any motive other than the desire to make a public institution abide by the laws of Romania and in particular the Constitution. This was supported by the fact that he had not chosen to go to the press directly, in order to reach the broadest possible audience, but had first turned to a member of the parliamentary commission responsible for supervising the RIS.
Görmüs and Others v. Turkey 2016 (Chamber judgment) In April 2007 the Nokta weekly magazine published an article based on documents classified “confidential” by the Chief of Staff of the armed forces. The Court held that there had been a violation of Article 10 of the Convention in the present case. Having regard especially to the importance of freedom of expression with regard to matters of public interest and the need to protect journalistic sources in this area, including where these sources were State employees who had observed and reported potentially questionable conduct or practices in their workplaces, the Court, having weighed up the various interests at stake and in particular the confidentiality of military affairs, held that the interference with the applicants’ right to freedom of expression, especially their right to impart information, did not meet a pressing social need, had not been proportionate to the legitimate aim sought and, in consequence, had not been “necessary in a democratic society”.
Halet v. Luxembourg concerned the disclosure by the applicant, while he was employed by a private company, of confidential documents protected by professional secrecy, comprising 14 tax returns of multinational companies and two accompanying letters, obtained from his workplace. Following a complaint by his employer, and at the close of criminal proceedings.
The Court held that there had been a violation of Article 10 of the Convention in the present case. In view, in particular, of its findings as to the importance, at both national and European level, of the public debate on the tax practices of multinational companies, to which the information disclosed by the applicant had made an essential contribution, the Court considered that the public interest in the disclosure of that information outweighed all of the detrimental effects arising from it. Thus, after weighing up all the interests concerned and taken account of the nature, severity and chilling effect of the applicant’s criminal conviction, the Court
concluded that the interference with his right to freedom of expression, in particular his freedom to impart information, had not been “necessary in a democratic society”.
Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina concerned a finding of defamation in civil proceedings against four organisations following the publication of a letter they had written to the highest authorities of their district complaining about a person’s application for the post of director of Brčko District’s multi-ethnic radio and television station.
The Court held that there had been no violation of Article 10 of the Convention in the applicants’ case, as it was satisfied that the impugned interference had been supported by relevant and sufficient reasons and had been proportionate to the legitimate aim pursued. It found that the domestic authorities had struck a fair balance between the applicants’ freedom of expression, on the one hand, and the interest of the person concerned in protection of her reputation on the other hand, thus acting within their margin of appreciation.
Herbai v. Hungary The applicant was working in the human resources department of a bank and was also contributing to a website which carried general articles about HR practice. The case concerned his dismissal from his job on the grounds that his website articles had breached the bank’s confidentiality standards and infringed its financial interests.
It held that there had been a violation of Article 10 of the Convention in respect of the applicant, finding that the domestic courts had failed to carry out an adequate exercise to balance the applicant’s right to freedom of expression against the bank’s right to protect its legitimate business interests. In particular, the Court disagreed with domestic court findings that articles on topics that were of interest to a professional audience could not benefit from free speech protection simply because they were not part of a debate of general public interest.