European Court of Human Rights: a decision on the disclosure of confidential information obtained at the workplace and the protection of freedom of expression

On 14 February 2024, the European Court of Human Rights clarified the criteria for assessing whether disclosure of confidential information obtained in the workplace is protected by freedom of expression under Article 10 of the European Convention of Human Rights (ECHR).
It stated that the State that convicts a former employee of an auditing firm for disclosing confidential information obtained in the workplace violates Article 10 of the ECHR on freedom of expression if that information is of particular interest to the public.

The case concerns two employees of PriceWaterhouseCooper who leaked confidential documents, protected by professional secrecy, to journalists.

Following a complaint by PwC, and at the end of criminal proceedings, the domestic courts in Luxembourg ordered one of those employees to pay a criminal fine of 1,000 euros and a symbolic sum of 1 euro in compensation for the non-pecuniary damage sustained by his employer.

He filed the case with the European Court. He successfully argued before the Grand Chamber that his 2016 conviction for leaking the data about Luxembourg’s tax dealings violated his right to freedom of expression.

Relying on Article 10 (freedom of expression) of the European Convention on Human Rights, he argued that his criminal conviction had substantially interfered with his right to freedom of expression.

The Court, overturning a previous decision by the Third Chamber, found that the disclosure of information contributed to the public debate, at both national and European levels, around tax practices of multinational companies, on tax evasion, transparency, fairness, and tax justice, concluding that there was a public interest in the disclosure.

The Court also stressed that, even if the Company had suffered financial and reputational damage related to the disclosure, the public interest in the disclosure was prevalent.

In the decision, the Court highlights that to assess whether the disclosure of confidential information obtained in the workplace is protected by freedom of expression under Article 10 ECHR, the following aspects must be verified:

(a) the availability or otherwise of alternative channels for disclosure;

(b) the public interest in the information disclosed

(d) the prejudice caused to the employer;

(e) whether the reporter acted in good faith;

(f) the severity of the sanction.

Employers must bear in mind this decision, which confirms the comprehensive protection offered to whistleblowers and the prevalence of the public interest over that of the employer.