Yes, in some cases, the European Court of Human Rights has ruled. In Halet v Luxembourg, the Court overturned an employee whistleblower’s criminal conviction for confidentiality leaks to the press, concluding that the conviction breached his right to freedom of expression under Article 10 of the Convention. For employers who are busy adapting to EU whistleblowing rules, it is a timely reminder of the human rights dimension of whistleblowing claims and the need for processes to manage the risks.
Whistleblowers who divulge their employer’s confidential information when raising concerns may argue that they are exercising their Article 10 right to freedom of expression. However, this right to speak freely can be overridden – for example, by legal restrictions protecting an employer’s confidential information. National courts, which must take Article 10 into account when deciding cases, will need to conduct a so-called “balancing test” to determine whose interest prevails.
Halet leaked confidential documents to the press concerning highly favourable tax arrangements that his employer, PwC, had agreed with the Luxembourg tax authorities for its multinational clients. The documents were among those later published in what became known as the “Luxleaks” affair, which led to a “difficult year” for PwC. Halet was dismissed and convicted in Luxembourg criminal proceedings for breaching...
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