Article 10 of the Convention[1] provides protection for freedom of expression.

Depending on the circumstances of the case, disclosure of sensitive information may be subject to protection (the so-called whistleblowing). At the same time, public interest in disclosing sensitive information may outweigh the statutory duty of confidentiality.

The issue of justification for the disclosure of sensitive information by an employee was addressed by the European Court of Human Rights in Strasbourg (ECHR) in its decision in the case of Halet v. Luxembourg - 21884/18 (LuxLeaks Whistleblower Case). The ECHR ruled that the conviction of the complainant violated his right to freedom of expression, even though the person disclosing the information was an auditor and thus had a statutory duty of confidentiality.

The state of facts

The complainant was employed by PricewaterhouseCoopers (PwC), a Luxembourg company offering tax, audit and business management services. In particular, PwC obtained favourable Advance Tax rulings (ATAs) for its clients (international companies). ATAs bind the tax administrator and enable avoiding disputes between the tax administrator and the taxpayer on the correctness of setting transfer prices negotiated between related parties. This allegedly led to tax optimisation for clients of PwC.

Another PwC employee provided tens of thousands of pages of classified information to a journalist in 2011. Following these revelations, in 2012 the complainant provided 16 documents relating to PwC clients (tax returns and cover letters) to a journalist. The information contained therein was subsequently used in a television programme.

The complainant was dismissed from PwC. He was subsequently sentenced to pay a fine of EUR 1 000. The complainant argued that he was a whistleblower and that he was entitled to protection related to that status, but the courts did not grant him whistleblower status.

ECHR assessment

The ECHR considered if the conviction of the complainant was in accordance with Article 10 of the Convention.

ECHR has already previously (ruling on Guja v. Moldova) set out the criteria, under which a complainant disclosing sensitive information may rely on the protection of Article 10 of the Convention:

• Channels used to publish information

Preference is given to internal channels (alerting the management). Only if this is not possible or would be impractical can the information be disclosed externally.

• Authenticity of published information

The whistleblower is not obliged to ensure the authenticity of the information, but must nevertheless behave responsibly and make every effort to verify that the information is true before disclosing it.

• Good faith of the person disclosing the information

The whistleblower must disclose the information in good faith, not for the purpose of harming the employer or gaining a personal advantage.

• Public interest in published information

Disclosure of information by a whistleblower must be in the public interest. The ECHR has previously determined that information in the public interest is, among other things, unlawful conduct or conduct that, while lawful, is reprehensible.

It may also be in the public interest to disclose information concerning the controversial functioning of public authorities which is capable of generating a legitimate public interest in order to form an opinion as to whether or not the public interest is being harmed.

The public interest in disclosure of information may be so strong that it outweighs the statutory duty of confidentiality.

• Damage caused to the employer

Damage to the employer is an interest to be weighed against the public interest in disclosure.

• Severity of the sanction

Sanctions against whistleblowers can take different forms, whether they are professional (dismissal), disciplinary or criminal (conviction).

When assessing the proportionality of the interference with the right to freedom of expression, the nature and severity of the penalties imposed must be taken into account. Criminal sanctions may be incompatible with the exercise of the whistleblower’s freedom of expression, given the consequences for the individual who made the report and the deterrent effect on others.

Conclusion

Despite the specific context of the case (information already published by another whistleblower, the theft of data by the complainant despite the complainant’s duty of confidentiality), the court found that the interference with the complainant’s rights (his conviction) was not necessary in a democratic society and was thus contrary to Article 10 of the Convention.

[1] European Convention on Human Rights

Author: Veronika Odrobinová, Petr Berdych