Whistleblowing and the Right to Freedom of Expression and Information under the European Human...

Whistleblowing and the

Right to Freedom of Expression and Informationunder

the European Human Rights System

Prof. dr. Dirk Voorhoof

Florence EUI

30 September 2013

www.psw.ugent.be/dvhttp://cmpf.eui.eu/seminars/whistle-blowing.aspx

Whistleblowing

Letteralmente : soffiare il fischietto

Lanceur d’alerte

Klokkenluider (“bell ringer”)

What is a whistleblower?

Definition

A person who exposes misconduct, or fraud, corruption, mismanagement of alleged dishonest or illegal activity within an organisation

Internal / external (authorities, regulators, media …)

Public interest in effective management and the accountability of public affairs and private business

Reporting integrity violations

Employees, civil servants, human rights defenders…

Risks

Harassment, retaliationDisciplinary punishmentDismissalCriminal prosecution / conviction / emprisonmentBlacklisting ThreatsPhysical violence

Psychological and social discomfort

Bradley (Chelsea) Manning

Leaked military info US + video Iraq35 year imprisonment Request for presidential pardonLarge support by civil societey (BM Support Network)http://www.bradleymanning.org/www.whistleblower.org

Edward Snowden

NSA contractorGlobal breach of privacyUS surveillance over digital communicationAsylum Russia

2013 Whistleblower Award in Germany

Now candidate for the Sakharov price of the European Parliament (proposed by Article 19)(Mandela, Taslima Nasreen, Arab spring activists, Aung San Suu Kyi…)

http://rt.com/news/snowden-prize-whistleblower-germany-255/

Other (famous) examples of whistleblowers?

- Negligence- Misuse- Abuse of power- Fraude- Corruption- Criminal acts- Irregularities

“Deep throat” – Watergate

Informant for Bob Woodward and Carl Bernstein of Washington Post, 1972Mark Felt, FBI (2005)

Aleksandr Solzhenitsyn

The Gulag Archipelago 1974Forced labor camp system in USSRExiledNobel Prize Literature

Jeffrey Wiggand (1995)Revealed that tobacco industrie had worked on optimising addiction, being aware how lethal cigarettes were (“The Insider”)Law suits, smear campaign

Sheron Watkins (Enron)Cynthia Cooper (Audit Worldcom)Coleen Rowley (FBI)

Front cover Time MagazinePersons of the Year 2002

Paul Van BuitenenEC Official, irregularities and fraud EUResignation of EC (Santer/Cresson)See also HM Tillack (ECtHR 27/11/2007, POJS)

Peter Wright (MI5, UK)

Spycatcher (1985)Book published in AustraliaInjunction, ban, gag orders in UK

ECtHR : UK breached Article 10 ECHRObserver, Guardian v. UKSunday Times no. 2 v. UK

ECtHR 26/11/1991 (prior restraint, public information)

Developments :

global vs nationalonline environmentplatforms for whistleblowing

- extra exposure- encouragement for leaking information- citizens more becoming concerned about

corruption, embezzlement and fraud inthe financial sector

- media / NGO’s : interesting sources

Also journalists, mediaplatforms, NGO’s… involved

Kostas VaxevanisGreece, Lagarde-list (prosecuted, not convicted)

Julian AssangeWikileaks (asylum Ecaudorian Embassy London)

Tokyo Two, Greenpeace“Informant” on whale meat embezzlement GP-staff members persecuted Searches and confiscations, pre-trial detentionPrison sentence (18 m., suspended)

Why whistleblowers (WB’s) are persecuted, harassed, hunted, imprisoned, dismissed … ?

Task : list up possible offences that whisteblowers commit

- Criminal Law / Criminal procedure Code - Breach of duty of secrecy, confidentiality- Intelligence, National Security- Treason, espionage, aiding the enemy- Military / Martial Law- Computer crime / Computer fraud- Data protection law / Privacy- Defamation or insult- (..)

- Breach of confidence- Labour law / labour contract- Civil servants : administrative law- Staff regulations- Insubordination- Theft - Tresspassing- Contempt of Court- ?

Manning, Snowden, Assange …

Existing WB Protection Laws in US not efficient?

No adequate First Amendment protectionin US for WB’s !

US Supreme Court Garcetti v. Ceballos, 04-5, 547 US 410, 2006

Government employees do not have protection from retaliation by their employers under the First Amendment if the alleged speech was produced as part of his/her duties (5/4).

Whistleblowers who want to pursue a federal case under the First Amendment must claim the memos or leaked information were part not only of the official duty but of a citizen's opinion and discourse of public relevance. This can be done by alleging that the cause for retaliation is not the text of the memo but the ideas surrounding it.

Perception in Europe is that US disrespects ‘public interest’ involved in whistleblowing or revealing illegal activities of US military, US diplomacy, US intelligence services…

http://www.article19.org/resources.php/resource/37133/en/usa-must-respect-international-standards-on-protection-of-whistleblowers

What is the situation in Europe ?

Paradox :

The PACE 2009 report says with regard to whistleblowing protection:

“in this field, Europe has much to learn from the United States”.

Why should whistleblowers be above the law?

Fressoz & Roire v. France (1999)

Publication of leaked tax files

In principle journalists are not above the law, but

… the interest of the public can be more important than enforcement of criminal law

Case showed that conviction of journalists for breach of professional secrecy and using illegaly obtained document was a violation of their freedom of expression

Violation of Article 10

Also Radio Twist v. Slovakia and Dupuis v. France

International / UN

ILO Termination of Employment Convention 1982 (ILO no. 158)Article 5 states that filing a complaint or participation in proceedings against an employer involving alleged violationsof law or regulations (..) are not valid reasons for dismissal ortermination of contract.

Article 33, UN Convention Against Corruption 2003 ( UNCAC)

“Each party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention”

International / Europe

Art. 24, 3, C, Appendix - European Social Charter 1996 (ETS No163)

Complaint or participation in proceedings against an employer involving alleged violations of laws or regulations (..) are not valid reasons for termination of employment

Art. 9 on the protection of employees in COE 1999 Ci vil Law Convention on Corruption (ETS No 174).

“Each Party shall provide in its internal law for appropriate protection against any unjustified sanction for employees who have reasonable grounds to suspect corruption and who report in good faith their suspicion to responsible persons or authorities”.

Art. 22 COE 1999 Criminal Law Convention on Corrupt ion

International / Europe

COE COM Code of Conduct for Public Officials, Rec ( 2000)10

Art. 11

Duty for public officials to treat appropriately, with all necessary confidentiality, all information and documents acquired by him or her in the course of, or as a result of his or her employment.

Art. 12

Public officials should report to the competent authorities any evidence, allegation or suspicion of unlawful or criminal activity relating to the public service coming to his or her knowledge… The investigation of the reported facts shall be carried out by the competent authorities

The public administration should ensure that no prejudice is caused to a public official who reports any of the above on reasonable grounds and in good faith.

EU Anti-Money Laundering Directive 2005/60

Article 27

Member States shall take all appropriate measures in order toprotect employees of the institutions or persons covered bythis Directive who report suspicions of money laundering orterrorist financing either internally or to the FIU (Financial Intelligence Unit) from being exposed to threats or hostile action.

EU Proposal for a Directive on markets in financial instruments (repealing Directive 2004/39, MIFID), Sec 2011 (1226-1277)

Article 77

Reporting of breaches

Member States shall ensure that competent authorities establish effective mechanisms to encourage reporting of breaches of the provisions of Regulation …/… (MiFIR) and of national provisions implementing this Directive to competent authorities.

EU Proposal for a Directive on markets in financial in struments(repealing Directive 2004/39, MIFID)Sec 2011 (1226-1277)

Article 77(..)

Those arrangements shall include at least:

(a) specific procedures for the receipt of reports and their follow-up;(b) appropriate protection for employees of financial institutions who denounce breaches committed within the financial institution;(c) protection of personal data concerning both the person who reports the breaches and the natural person who is allegedly responsible for a breach (..)

2. Member States shall require financial institutions to have in place appropriate procedures for their employees to repor t breaches internally trough a specific channel.

More EU and OLAF (European Anti-Fraud Office)

6 December 2012

The Commission issued new guidelines to remind staff of whistleblowing obligations

The Commission adopted new guidelines (updating those of 2004) on whistleblowing to encourage staff to come forward and report any information pointing to corruption, fraud and other serious irregularities that they discover in the line of duty.

More EU and OLAF (European Anti-Fraud Office)

6 December 2012

Reporting serious irregularities is a duty, to help the Commission and the European Anti-Fraud Office detect and investigate them.

This duty is counterbalanced by solid protection offered to whistleblowers acting in good faith.

http://europa.eu/rapid/press-release_IP-12-1326_en.htm

National laws in Europe

Most countries have “no comprehensive laws for the protection of “whistle-blowers”, though many have rules covering different aspects of “whistle-blowing” in their laws governing employment relations, criminal procedure, media, and specific anti-corruption measures’ (Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Denmark, Estonia, France, Georgia, Germany, Greece, Italy, Lithuania, “the former Yugoslav Republic of Macedonia”, the Netherlands, Norway, Poland, Romania, Serbia, Slovakia, Slovenia, Sweden, Switzerland, Turkey and the UK)

PACE report’s conclusion 2009 is that much still remains to be done at the level of national legislation in Europe an countries

Other studies conclude that in Europe “whistleblowing legislation is generally fragmented and weakly enfo rced”

GAP 2013 report

In stark contrast to the United States, few European countries have laws directly protecting whistleblowers.

Instead of this type of US comprehensive whistleblowerprotection regime, most European Union nations have only a patchwork of whistleblower protections found in employment, criminal, media, and anti-corruption laws

The reality in most countries in Europe is that under current law, employees who engage in effective whistleblowing have no legal protections from a retaliatory termination of their employment

http://www.whistleblower.org/storage/documents/TheC urrentStateofWhistleblowerLawinEurope.pdf

Council of Europe : PACE request for action – Rec. 2 010

It recommends that the Committee of Ministers:

- draw up a set of guidelines for the protection of whistle-blowers, taking into account the guiding principles stipulated by the Assembly in its Resolution 1729 (2010);

- invite member and observer states of the Council of Europe to examine their existing legislation and its implementation with a view to assessing whether it is in conformity with these guidelines;

- consider drafting a framework convention on the protection of whistle-blowers.

Actual and effective protectionfor whistleblowers

ECHR?

Actual and effective protection for WBunder Article 10 ECHR?

10.1. Everyone has the right to freedom of expression

Freedom to hold opinions To express, impart and receive information and ideas

+ without interference by public authority + regardless of frontiers.

Licensing system for broadcasting, television/cinema

10.2 Duties and responsibilities

> formalities, conditions, restrictions or penalties

1. Prescribed by law2. Legitimate aim (..)3. Necessary in a democratic society

Actual and effective protection under European Human Rights System ?

1. Protection of journalistic sources : indirect protection for ‘anonymous’ WB’s

Journalists cannot be compelled to give identity of source, protection against coercive or investigative measures

- Goodwin v. UK (1996) : order to reveal identity / to hand over document

- Tillack v. Belgium (2007) : searches and confiscations because of rumours of bribing (OLAF)

Article 10 and POJS also to protect whistleblowers

Protection of journalistic sources essential for pr ess freedomunless ‘ overriding requirement of public interest’

+ subsidiarity and proportionality+ regardless of illegal or illicit origin+ protection against searches / confiscations

+ EX ANTE review by judge/impartial body (not PP or police)

Roemen and Schmit v. Luxembourg and Saint-Paul Lux. SA v. Luxembourg

Ernst e.a. v. Belgium and Tillack v. BelgiumVoskuil v. Nl. and Sanoma v. Nl. (Grand Chamber)Financial Times v. the UK (Interbrew / AB Inbev)Martin v. France and Ressiot v. France De Telegraaf Media v. the Netherlands (Security/Intelligence Services)Nagla v. Latvia

See also Nordisk Film A/S v. Denmark (Child abuse, pedophaelia)

2. Freedom of expression of civil servants

- Glasenapp v. Germany - Kosiek v. Germany (1987)No Right of Access to Public Service, Article 10 not applicable in case of dismissal for expressing certain information of ideas

- Vogt v. Germany (1996)Article 10 is applicable in case of civil servant expressing information and ideas. Violation Article 10

- Fuentes Bobo v. Spain (2000)Sharp criticism on management TVE, dismissalViolation Article 10

3. Freedom of expression protection of whistleblowing

Guja v. Moldova (2008)

“a civil servant, in the course of his work, may become aware of in-house information, including secret information, whose divulgation or publication corresponds to a strong public interest”

Court considered the dismissal of a civil servant who had leaked information, more specifically, a letter to the press, to be an unlawful restriction of the right of freedom of expression

Violation Article 10

Other cases

Wille v. Liechtenstein (1999)Critical lecture, no prolongation of appointment as a judgeAcademic discussion, chilling effectViolation Article 10

Raichinov v. Bulgaria (2006) Allegation of corruption by PPG, conviction for insultViolation Article 10

Kudeshkina v. Russia (2009)Dismissal of judge after statements in the media about corruption within Moskou judiciaryViolation Article 10

More cases

Peev v. Bulgaria (2007)Employee PP office criticising Chief Prosecutor in newspaper. Searches, confiscations, dismissal.Violation Article 10 (+ 8 +13)

Frankovic v. Poland (2008)Disciplinary sanction of a doctor who in a medical report for a patient had made negative remarks about the treatment and care of the patient in a certain hospitalImproper criticism of colleagues.ECtHR : to “ban any critical expression in the medical profession is not consonant with the right to freedom of expression”Violation Article 10

More cases

Marchenko v. Ukraine (2009)Allegations by school teacher of personal enrichment and reprehensible conduct by school principal. No factual basis.One year prison sentence is disproportionate sanctionViolation Article 10

Sosinowska v. Poland (2011)Doctor informed authorities about her superior and lack of quality in treatment of patients, she was reprimandedHowever her concern was well being of patientsViolation Article 10

No violation Article 10

De Diego Nafria v. Spain (2002)Bank employee, internal accusation of Governor of Bank of SpainPersonal attack, serious allegations, no factual basisDismissal

Poyraz v. Turkey (2010)Judicial official, controversial disciplinary investigation about a judge, comments in the mediaDuty of discretion, confidential information

Bathellier v. France (2010), Szima v. Hungary (2012)…


Grigory Pasko v. Russia (2009)

Military journalist, researcherDisclosed dumping nuclear waste by Russian Navy

Found in possession of classified information in airport

Convicted for treason through espionage for having collected secret information with the intention of transferring it to a foreign national

Four years in prison

Grigory Pasko v. Russia (2009)

ECtHR : “as a serving military officer, the applicant had been bound by an obligation of discretion in relation to anything concerning the performance of his duties”

“Right balance of proportionality between the aim to protect national security and the means used for that, namely the sentencing of the applicant to a lenient sentence, much lower than the minimum stipulated in law”.


4. Also employee/employer, private relations

Heinisch v. Germany (2011)

Article 10 of the Convention also applies when the relations between employer and employee are governed by private law

The State has a positive obligation to protect the right to freedom of expression, even in the sphere of relations between individuals

Nurse reported shortcomings in care for elderly peopleFirst to management, later to authoritiesAfterwards, when nothing happened, to union, leafletsDismissedViolation of Article 10

Guja v. Moldova (2008)Whistleblower case

Mr. Guja = head of communication of Public Prosecut or’s office He leaked a letter to the media

Letter gave evidence of influence by a Minister on Public Prosecutor and administration of justice in a corru ption case

Mr. Guja was dismissed because of breach of duty of professional secrecy

QUESTION

In what context a WB can rely on Article 10?Under which conditions/criteria?

Guja v. Moldova (2008) Conditions – consistent application?

1. No alternative channels for the disclosure (+ effective + protection of whistleblower)

2. Public interest in the disclosed information

3. Authenticity of the disclosed information (+ accurate/reliable)

4. Justifiable damage to employer/administration/others

5. Whether the applicant acted in good faith (motif = public interest)

6. The severity of the sanction (+ consequences)

Pasko v. Russia (2009)?

A European Bradley Manning?

See also report PACE 2003

Countries in which journalists have recently been subjected to prosecution on espionage charges should clearly and narrowly define the scope of official secrecy, in public laws and regulations, in order to eliminate legal insecurity.

Due consideration is to be given to the legitimate need of the public to be informed of any illicit behaviour by State organs, including the armed forces, in particular when it constitutes a threat to human rights, the environment, or other vital interests of the people.

http://assembly.coe.int/ASP/Doc/XrefViewHTML.asp?FileId=10312&Language=en

Pasko v. Russia (2009)

PACE Resolution 1729 (2010) – Guiding Principles

1. Whistle-blowing legislation should be comprehensive

2. Whistle-blowing legislation should focus on providing a safe alternative to silence

3. As regards the burden of proof , it shall be up to the employe r to establish beyond reasonable doubt that any measures taken to the detriment of a whistle-blower were motivated by reasons other than the action of whistle-blowing

4. Monitoring and evaluation at regular intervals by independent bodies.


- broad definition of protected disclosures - WB protection to cover both public and private sector

whistle-blowers, including members of the armed forces and special services, and focus on

° employment law – in particular protection against unfair dismissals and other forms of employment-related retaliation; °criminal law and procedure – in particular protection against criminal prosecution for defamation or breach of official or business secrecy, and protection of witnesses; ° media law – in particular POJS; ° specific anti-corruption measures COE Civil Law Convention on Corruption (ETS No. 174).


a. - internal whistle-blowing procedures ensure

° disclosures pertaining to possible problems are properly investigated ; °the identity of the whistle-blower is only disclosed with his or her consent, or in order to avert serious and imminent threats to the public interest; ° the WB legislation should protect anyone who, in good faith, makes use of existing internal whistle-blowing channels from any form of retaliation (unfair dismissal, harassment or any other punitive or discriminatory treatment).


b. where internal channels either do not exist, have not functioned properly or could reasonably be expected not to function properly given the nature of the problem raised by the whistle-blower,

external whistle-blowing , including through the media, should likewise be protected.


Any whistle-blower shall be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turns out that this was not the case, and provided he or she did not pursue any unlawful or unethical objectives.

WB protection should create a risk for those committing acts of retaliation by exposing them to counter-claims from the victimised whistle-blower which could have them removed from office or otherwise sanctioned.

Whistle-blowing schemes shall also provide for appropriate protection against accusations made in bad faith.


Legislative improvements must be accompanied by a positive evolution of the cultural attitude towards whistle-blowing, which must be freed from its previous association with disloyalty or betrayal

Role of NGO’s

Some other issues / discussion

- Whistleblowing : a right or a duty?

- Internal/external?How to evaluate internal procedure would

not have been effective?

- Employment relation as a condition to be a WB?

- Can the law really protect WB’s ?Illusion of protection ?

Some other issues

- The rights of defence of people implicated in any allegations must be respected (Article 6 and 8 ECHR)See ECtHR 16 April 2013, Căşuneanu v. Romania

and ECtHR 18 April 2013, Ageyevy t. Russia.

- Anonimity / identity to stay confidential

- Ombudsman / audit authorities to report + protection WB

- What is left of Article 10 if all ECHR-countries would have performant PA?

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