On 14 February 2023 the Grand Chamber of the European Court of Human Rights (ECtHR) delivered a judgment that is both highly instructive and protective for whistle-blowers claiming protection of their right to freedom of expression and information as guaranteed under Article 10 of the European Convention on Human Rights (ECHR).
The Grand Chamber builds on its earlier case law, integrating the developments which have occurred since the judgment in Guja v. Moldova in 2008, in particular in the light of the current European and international legal framework.
The judgment emphasises the place now occupied by whistle‑blowers in democratic societies and their leading role by bringing to light information that is in the public interest. In this regard, the Grand Chamber judgment refers to the EU Directive (2019/1937) of 23 October 2019 on the protection of persons who report breaches of Union law and the Recommentation (CM/Rec(2014)7) on the protection of whistle-blowers adopted by the Committee of Minister of the Council of Europe on 30 April 2014 (see also here).
From Chamber to Grand Chamber
The case is about one of the whistle-blowers who leaked confidential documents which led to the LuxLeaks scandal. Nearly two years ago, the third section chamber of the ECtHR, on 11 May 2021, found no violation of the whistle-blower’s rights in the case at issue, though with a robust dissenting opinion by the Belgian and the Albanian judges (Lemmens and Pavli).
The chamber judgment in 2021 caused significant alarm among whistle-blower protection and media freedom experts, and in particular the Whistleblowing International Network (WIN) expressed its concerns about the finding by the third section chamber. On the whistle-blower’s request the case was subsequently referred to the Grand Chamber. Members of WIN, the Maison de Lanceurs d’Alerte in France, the Whistleblower-Netzwerk e.V. in Germany and Media Defence intervened in the case with third-party comments.
In its judgment of 14 February 2023 the Grand Chamber, by a majority of twelve votes to five, finds a violation of the whistle-blower’s right under Article 10 ECHR. The Grand Chamber holds that the public interest in leaking the data outweighed the detrimental effect of the leaks. According to the Whistleblowing International Network (WIN) the judgment “is an important victory for whistle-blowers acting in the public interest and demonstrates that the European Court of Human Rights remains a bastion for protecting whistle-blowing as a matter of freedom of expression. This is crucial at a time when many EU member states are failing to adopt laws to effectively transpose the new EU Directive on whistle-blower protection, with some clearly stepping backwards (..). The Grand Chamber’s judgment is considered “a positive step in the right direction for the protection of whistle-blowers and the public’s right to know in Europe” (link).
The case goes back to the LuxLeaks disclosures in 2012-2014 that revealed extremely advantageous tax agreements between multinational companies and the Luxembourg tax authorities. Following media revelations about the practices of such advance tax rulings (“ATAs”) in Luxembourg based on a large amount of documents leaked by whistle-blower Antoine Deltour, another employee of the firm PricewaterhouseCoopers (PwC), Raphaël Halet, had delivered some additional confidential documents to a journalist, giving further evidence of ATAs.
Some of these leaked documents were shown in a television programme and later posted online by an association of journalists known as the International Consortium of Investigative Journalists (ICIJ). Following a complaint by his employer, Halet was ordered by the Luxembourg Court of Appeal to pay a criminal fine of 1,000 euros, and to pay a symbolic sum of 1 euro in compensation for the non-pecuniary damage sustained by his employer PwC.
Halet was convicted for the offences of theft, fraudulent initial or continued access to a data-processing or automated transmission system, breach of professional secrecy and laundering of the proceeds of theft from one’s employer. In the meantime he was also dismissed from his job at PwC. After exhausting all national remedies, and after the third section chamber of the ECtHR had found no breach of Halet’s rights under Article 10 ECHR, the case was referred to the Grand Chamber of the ECtHR.
The judgment of the Grand Chamber argues extensively why the interference by the Luxembourg authorities with Halet’s right as a whistle-blower violated Article 10 ECHR. It found that the interference at issue was prescribed by law and pursued a legitimate aim, namely the protection of the reputation or rights of others, in particular the protection of PwC’s reputation and rights. But the interference in the form of a criminal sanction did not meet the standard of necessity in a democratic society.
Whistleblowers acting in the public interest
First the ECtHR reiterates that the protection of freedom of expression in the workplace constitutes a consistent and well-established approach in its case-law, which has gradually identified a requirement of special protection that, subject to certain conditions, ought to be available to civil servants (in the public sector) and employees (in the private sector), who, in breach of the rules applicable to them, disclose confidential information obtained in their workplace. The protection regime for the freedom of expression of whistle-blowers is likely to be applied where the employee or civil servant concerned is the only person, or part of a small category of persons, 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.
The protection enjoyed by whistle-blowers under Article 10 ECHR is based on the need to take account of characteristics 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, the position of economic vulnerability vis-à-vis the person, public institution or enterprise on which they depend for employment and the risk of suffering retaliation from the latter. Referring to the developments which have occurred since the Guja judgment, to the place now occupied by whistle‑blowers in democratic societies and to the development of the European and international legal framework for the protection of whistle-blowers, the Grand Chamber grasps the opportunity to confirm, consolidate and refine the six criteria identified by the Guja judgment :
(1) whether or not alternative channels for the disclosure were available;
(2) the authenticity of the disclosed information;
(3) whether the whistle-blower acted in good faith;
(4) the public interest in the disclosed information;
(5) the detriment to the employer; and
(6) the severity of the sanction
The refined six Guja criteria
(1) The ECtHR confirms that the internal hierarchical channel is, in principle, the best means for reconciling employees’ duty of loyalty with the public interest served by disclosure. However, the order of priority between internal and external reporting channels is not absolute. Such internal mechanisms have to exist, and they must function properly. External reporting, including disclosure to journalists or media, is acceptable where the internal reporting channel is unreliable or ineffective, where the whistle-blower is likely to be exposed to retaliation or where the information that he or she wishes to disclose pertains to the very essence of the activity of the employer concerned.
(2) Where a whistle-blower has diligently taken steps to verify, as far as possible, the authenticity of the disclosed information, he or she cannot be refused the protection granted by Article 10 ECHR on the sole ground that the information was subsequently shown to be inaccurate. Whistle-blowers who wish to be granted the protection of Article 10 ECHR are required to behave responsibly by seeking to verify, in so far as possible, that the information they seek to disclose is authentic before making it public.
(3) With regard the criterion of good faith, the ECtHR confirms that in assessing an applicant’s good faith, it verifies whether he or she was motivated by a desire for personal advantage, held any personal grievance against his or her employer, or whether there was any other ulterior motive for the relevant actions. Good faith can be accepted when a whistle-blower believed that the disclosed information was true and that it was in the public interest to disclose it. In contrast, when allegations are based on a mere rumour, without any supporting evidence, a whistle-blower is not to be considered to have acted in good faith.
(4) The most innovative “refining” of the Guja principles is that of the criterion that the disclosure must be of public interest. The Grand Chamber clarifies that the range of information of public interest which may justify whistle-blowing that is covered by Article 10 ECHR includes the disclosure of unlawful acts, practices or conduct in the workplace, or of acts, practices or conduct which, although legal, are reprehensible.
In addition, it can also include certain information that concerns the functioning of public authorities in a democratic society and sparks a public debate, giving rise to controversy likely to create a legitimate interest on the public’s part in having knowledge of the information in order to reach an informed opinion as to whether or not it reveals harm to the public interest. And although information capable of being considered of public interest concerns, in principle, public authorities or public bodies, it can also concern the conduct of private parties, such as companies, who also inevitably and knowingly lay themselves open to close scrutiny of their acts. The ECtHR emphasises that the public interest in information cannot be assessed only on a national scale, as some types of information may be of public interest at a supranational – European or international – level, or for other States and their citizens. It also points out that in the context of whistle-blowing, the public interest in disclosure of confidential information will decrease depending on whether the information disclosed relates to unlawful acts or practices, to reprehensible acts, practices or conduct or to a matter that sparks a debate giving rise to controversy as to whether or not there is harm to the public interest.
(5) The public interest in the disclosed information must also be weighed up against the detriment to the employer. The ECtHR reiterates that the criterion of detriment to the employer was initially developed with regard to public authorities or State-owned companies: the damage in question, like the interest in the disclosure of information, was then public in nature. However, when it concerns the disclosure of information obtained in the context of an employment relationship it can also affect private interests, for example by challenging a private company or employer on account of its activities and causing it, and third parties in certain cases, financial and/or reputational damage. In the ECtHR’s view it is necessary to fine-tune the terms of the balancing exercise to be conducted between the competing interests at stake.
(6) Regarding the last criterion, the ECtHR reiterates that the nature and severity of the penalties, as well as the cumulative effect of the various sanctions imposed on a whistle-blower, are factors to be taken into account when assessing the proportionality of an interference with the right to freedom of expression.
In applying these principles and criteria in the present case the Grand Chamber reaches the conclusion that the judgment of the Luxembourg Court of Appeal in particular did not properly balance the public interest in the disclosed information and the detrimental effects of the disclosure.
External reporting of authentic information, in good faith
There was no discussion that only direct recourse to an external reporting channel was likely to be an effective means of alert available to Halet. The ECtHR considers that the tax-optimisation practices for the benefit of large multinational companies and the tax returns prepared by Halet’s employer for the Luxembourg tax authorities on behalf of its clients, were legal in Luxembourg. There was therefore nothing wrongful about them, within the meaning of the law, which would have justified an attempt by Halet to alert PwC’s hierarchy in order to put an end to activities constituting his employer’s normal activity. In such a situation, only direct recourse to an external reporting channel is likely to be an effective means of alert. Indeed in certain circumstances, the use of the media may be a condition for effective whistle-blowing. Hence informing the public through the media had, on this occasion, been the only realistic alternative in order to raise the alert. Neither was there any doubt that the documents leaked to a journalist were accurate and authentic and that Halet acted in good faith at the time of making the disclosures in question.
Most importantly the Grand Chamber finds that the Luxemburg Court of Appeal gave an overly restrictive interpretation of the public interest of the disclosed information.
The ECtHR clarifies that the sole fact that a public debate on tax practices in Luxembourg was already underway when Halet disclosed the impugned information cannot in itself rule out the possibility that this information was of public interest. It refers to the fact that the LuxLeaks scandal has given rise to controversy as to corporate tax practices in Europe and to the public’s legitimate interest in being apprised of them. The Grand Chamber emphasises that the purpose of whistle‑blowing is not only to uncover and draw attention to information of public interest, but also to bring about change in the situation to which that information relates, where appropriate, by securing remedial action by the competent public authorities or the private persons concerned, such as companies. Therefore it is sometimes necessary for the alarm to be raised several times on the same subject before complaints are effectively dealt with by the public authorities, or in order to mobilise society as a whole and enable it to exercise increased vigilance. Hence, the fact that a debate on the practices of tax avoidance and tax optimisation practices in Luxembourg was already in progress when the impugned documents were disclosed cannot suffice to reduce the relevance of these documents.
Furthermore, the weight of the public interest attached to the leaked ATAs cannot be assessed independently of the place now occupied by global multinational companies, in both economic and social terms. The role of tax revenues on States’ economies and budgets and the considerable challenges posed for governments by tax strategies such as profit shifting, which may be used by some multinational companies, must also be taken into consideration. Therefore the ECtHR concludes that the information relating to the tax practices of multinational companies, such as those whose tax returns were made public by Halet, undoubtedly contributed to the ongoing debate – triggered by Antoine Deltour’s initial disclosures – on tax evasion, transparency, fairness and tax justice. There is no doubt that this is information in respect of which disclosure is of interest for public opinion, in Luxembourg itself, whose tax policy was directly at issue, in Europe and in other States whose tax revenues could be affected by the practices disclosed.
Only relative detrimental effect
The ECtHR points out that it cannot overlook the fact that the impugned disclosure was carried out through the theft of data and a breach of the professional secrecy by which Halet was bound, but at the same time it refers to the relative weight of the disclosed information, its nature and the extent of the risk attached to its disclosure. The Grand Chamber accepts that PwC sustained some reputational damage, particularly among its clients, since the impugned disclosure could have raised questions about its ability to ensure the confidentiality of the financial data entrusted to it and the tax activities carried out on their behalf. However, there were no indications of longer-term damage. With regard to PwC’s clients, the ECtHR recognises, in view of the media and political repercussions which followed the disclosure of the tax returns in question, that their disclosure could have been prejudicial, at least to some extent, to the private interests and reputations of the multinational companies whose names were revealed to the general public. The ECtHR also recognises the public interest of the preservation of professional secrecy, in so far as its aim is to ensure the credibility of certain professions by fostering a relationship of trust between professionals and their clients, while this is at the same time a principle of public policy, breach of which may be punishable under criminal law. The ECtHR is of the opinion however that the public debate on the tax practices of multinational companies, to which the information disclosed by Halet has made an essential contribution, and the public interest in the disclosure of that information outweighs all of the detrimental effects.
Finally the ECtHR considers the nature and severity of the sanctions imposed on Halet. After having been dismissed by his employer, admittedly after having been given notice, Halet was also prosecuted and sentenced, at the end of criminal proceedings which attracted considerable media attention, to a fine of EUR 1,000. Having regard to the chilling effect of a criminal sanction on the freedom of expression of Halet or any other whistle-blower, and especially bearing in mind the conclusion reached by weighing up the interests involved, the Grand Chamber considers that Halet’s criminal conviction cannot be regarded as proportionate in the light of the legitimate aim pursued. Therefore the ECtHR concludes that the interference with Halet’s right to freedom of expression, in particular his freedom to impart information, was not “necessary in a democratic society”. There has accordingly been a violation of Article 10 ECHR.
Four dissenting judges argue that the domestic courts did take into consideration all of the evidence in this case, including the factual context, the criteria laid down in the Guja case-law and that they weighed up all of these elements. Therefore the four dissenters are of the opinion that in refusing Halet the full protection of whistle-blower status, the Luxembourg courts remained within their margin of appreciation and that the interference with the rights of Halet was not in breach of Article 10 ECHR. The (former) Danish judge in a separate dissenting opinion opposes the Grand Chamber’s further development of the criterion regarding the public interest in the disclosed information. He disagrees in particular that this concept could also cover “a matter that sparks a debate giving rise to controversy as to whether or not there is harm to the public interest”.
The strong protection afforded by Article 10 ECHR for whistle-blowers confirms the approach by the ECtHR reflected in its landmark judgments on whistle-protection such as in Guja v. Moldova, Kudeshkina v. Russia, Heinisch v. Germany and Bucur and Toma v. Romania. The press service of the ECtHR also took the delivery of the Grand Chamber judgment in Halet v. Luxembourg as an occasion to present its case law in a new factsheet on “Whistleblowers and freedom to impart and to receive information”.
Most importantly the Grand Chamber expanded the scope of the crucial concept of public interest, to include not only reporting by an employee (or civil servant) of unlawful acts, or acts which, although legal, are ‘reprehensible’, but also “certain information that concerns the functioning of public authorities in a democratic society and sparks a public debate, giving rise to controversy likely to create a legitimate interest on the public’s part in having knowledge of the information in order to reach an informed opinion as to whether or not it reveals harm to the public interest” (par. 138).
As in most of its judgments on whistle-blowers’ protection the ECtHR referred to the (risk of) chilling effect of the interference with Halet’s right under Article 10 ECHR, while it points out that the domestic courts had not taken into account this aspect in any way. The Grand Chamber reiterates that because of the essential role of whistle-blowers “any undue restriction on freedom of expression effectively entails a risk of obstructing or paralysing any future revelation, by whistle-blowers, of information whose disclosure is in the public interest, by dissuading them from reporting unlawful or questionable conduct” (par. 204).
It is interesting to notice that with this quote from its judgment in Görmüş a.o. v. Turkey, the ECtHR makes the link with the indirect protection of whistle-blowers based on the rights of journalists not to disclose their sources and journalists being protected against searches and confiscations of their documents and data. In the Gormus case the ECtHR considered that the search of a magazine’s premises, the transfer to external discs of the entire contents of the computers and their storage by the prosecutor’s office had clearly undermined the protection of journalistic sources. The ECtHR noticed that this intervention was likely not only to have very negative repercussions on the relationships of the journalists in question with their sources, but could also have a serious chilling effect on other journalists “or other whistle-blowers” who were State officials, and could discourage them from reporting any misconduct or controversial acts by public authorities.
The Grand Chamber judgment in Halet v. Luxembourg again demonstrates that whistle-blowers’ protection is not only indirectly protected under Article 10 ECHR by way of the right of journalists to protect their sources, a right that helps to secure the anonymity of whistle-blowers who don’t want their identity to be revealed for fear of prosecution, dismissal, retaliation or other detrimental effects for themselves or their environment.
The Grand Chamber judgment in Halet v. Luxembourg, 15 years after Guja v. Moldova, confirms and strengthens the direct and robust protection of whistle-blowers under article 10 ECHR. Because of the binding character of the ECHR it is to be expected that at the domestic level there will be no longer any hesitation to respect the whistle-blowers’ rights according to the standards developed and refined in Halet v. Luxembourg.
Both at the level of the EU and of the Council of Europe initiatives are actually being prepared against SLAPPs, Strategic Lawsuits Against Public Participation and measures are proposed that will also give whistle-blowers, as persons engaging in public participation, additional protection against abusive claims or lawsuits not respecting their rights under Article 10 ECHR. By guaranteeing and effectuating these different layers of protection Article 10 ECHR has become the fundamental legal basis in support of “whistle-blowing for sustainable democracy” in Europe (link).
Judgment by the European Court of Human Rights, Grand Chamber, the case ofHalet v. Luxembourg Application no. 21884/18, 14 February 2023
Dirk Voorhoof, Human Rights Centre, Ghent University and Legal Human Academy