Protection for whistleblowers under the European Convention on Human Rights

At a glance

• Article 10 of the European Convention on Human Rights provides a right to freedom of expression.
• This right has previously been held to provide protection for whistleblowers who disclose alleged wrongdoing during the course of their employment.
• A recent decision of the European Court of Human Rights extends this protection to individuals who make a disclosure after their employment has ended. 

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The European Court of Human Rights (ECHR) has decided that the right to freedom of expression under Article 10 of the Convention can apply to protect a whistleblower who makes allegations of wrongdoing after their employment has ended. 

The judgment in Hrachya Harutyunyan v Armenia, handed down in August 2024, further extends the previous ECHR decision in Halet v Luxembourg where it was held that an individual's criminal convictions arising from disclosure of confidential corporate information during employment constituted an infringement of the right to freedom of expression. 

Facts

The applicant (HH) worked for the Electric Networks of Armenia (ENA), as Head of the Security and Administration Department between 2008 and 2011. ENA's website hosted a request for anyone with information about corrupt practices at the company to make a report using a dedicated email address. The company promised to carry out an independent investigation into any information reported and guaranteed that all reports submitted would remain anonymous and confidential.

In March 2012, HH sent a report to the dedicated email address making accusations of abuse of office, improper conduct and corruption against VB, an employee in ENA’s Security Department (VB). The report was forwarded to the Department Head, who was asked to verify the information. The Department Head shared HH's report with VB and, as a result, VB brought proceedings against HH for defamation.

The first-instance court found that statements made by HH within the report had been defamatory and insulting and ordered HH to make a public apology and pay compensation of approximately EUR3,500. HH's subsequent appeals were unsuccessful, and his property was seized in order to recover the damages. HH appealed to the ECHR, claiming a breach of his right to freedom of expression under Article 10.

Decision

The ECHR found that the judgments of the Armenian courts constituted interference by  a public authority with HH's freedom of expression. The courts had treated the case as a defamation case rather than examining it as impacting on the protection of whistleblowers. The Court held that the protection of whistleblowers extends beyond the end of employment, particularly where information reported concerns matters of public interest. It was relevant that HH's report was based on information obtained through privileged access during his employment and that he had chosen to use the internal reporting mechanism provided by the employer.

The right to freedom of expression is a qualified right which can be limited only in exceptional circumstances which are in accordance with law and are justified and necessary in a democratic society to protect certain legitimate interests, including the protection of the reputation or rights of others or for preventing the disclosure of information received in confidence.  

In assessing whether the interference of the national courts with HH's freedom of expression could be justified, the ECHR considered several criteria including the channel HH had used to make his report, the public interest in the information reported, the authenticity of the information, the harm to the employer, the good faith of HH, and the severity of the sanctions imposed. 

The ECHR concluded that the national courts had failed to give sufficient consideration to the public interest nature of HH’s report, which concerned serious allegations against a senior official of a public utility service provider.

Having weighed up all the interests involved, the Court concluded that the interference with HH's right to freedom of expression had not been 'necessary in a democratic society'. There had been a violation of Article 10 and HH was awarded EUR4,500 of non-material damages, with the claim for material damages to be the subject of a later judgment.

Comment

The Whistleblower Protection Directive, which is now in effect in all 27 EU Member States, provides protection from retaliation for individuals who report breaches of law in an array of specified fields ranging from product safety and environmental protection to public health and consumer protection. The scope of the Directive is wide and it applies to various categories of individual who acquire information on suspected breaches in a work-related context, with both current and former workers given protection.     

That the 'end of employment is not a bar to whistleblower protection' under the Directive was specifically noted by the ECHR in the present case. Given this and the Court's recognition of the benefits of whistleblowing as a means of strengthening transparency and accountability, the decision is perhaps unsurprising. 19 countries outside the European Union are signatories to the European Convention on Human Rights and this judgment, as well as the decision in Halet, mean that workers in those countries who blow the whistle on workplace wrongdoing are afforded some protection against retribution, despite not being directly covered by the Whistleblowing Directive.