European Court Grand Chamber finds conviction of whistle-blower in Luxleaks case breached his right to freedom of expression

The Grand Chamber of the European Court of Human Rights (ECtHR) has held that the criminal conviction of Luxleaks whistle-blower Raphaël Halet in Luxembourg in 2016 was a violation of his article 10 right to freedom of expression. In doing so, the Grand Chamber has made some important observations about the vital role whistle-blowers increasingly play in democratic societies. It has also recalibrated the criteria developed in its previous case law to accommodate this development.

The ‘Luxleaks’ case

Mr Halet, was one of two whistle-blowers behind the disclosure of PricewaterhouseCoopers’ (PwC) internal company documents to a French journalist, helping to expose widespread tax avoidance. The Luxleaks documents were used in a television program about multinational companies and the payment of tax. They were also published online by the International Consortium of Investigative Journalists in 2014. Following these revelations, the OECD branded Luxembourg as non-compliant with international standards on tax transparency and placed it on a blacklist of non-co-operative jurisdictions.

Mr Halet was convicted in the Luxembourg courts on several charges, including theft, breach of professional secrecy and breach of trade secrets. In May 2021, a Chamber of the ECtHR held that Mr Halet’s criminal conviction was compatible with the right to freedom of expression. It found that the domestic courts had carried out an appropriate balancing exercise between the harm apparently caused to PwC and Mr Halet’s right to expression. It also endorsed the approach of the domestic court, that the finding that the disclosed documents did not contain information that was “essential, new and unknown”, was a legitimate consideration in its analysis of those competing rights. The case was subsequently referred to the Grand Chamber.

The Grand Chamber’s decision

In effectively reversing the Chamber’s finding, the Grand Chamber revisited the criteria it had previously developed for assessing whether and to what extent an individual disclosing confidential information obtained in their workplace could rely on the protection provided by article 10. Those criteria are –

• whether alternative channels for the disclosure were available
• the public interest in the disclosed information
• its authenticity
• the detriment to the employer
• whether the whistle-blower acted in good faith
• the severity of any sanction imposed

The Grand Chamber reiterated the importance of ensuring these criteria were applied carefully, on the basis the status of whistle-blower can provide effective immunity from criminal sanction. Importantly, in relation to the second criterion – when a matter can be considered to be in ‘the public interest’ – the Grand Chamber expanded the scope of that concept to include not only reporting by an employee 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.”

The Grand Chamber’s judgment recognises that the public interest that serves as a justification for disclosure must be assessed having regard to any duty of confidentiality that was owed. Nonetheless, this is an important development for whistle-blowing and, by extension, press freedom. Media Defence filed a third-party intervention in the case emphasising the importance of whistle-blowing, not least for effective newsgathering:

One aspect of newsgathering, relating to the right of access to information held by the state, can be given force through legislation, as is the case in many states within the territory of the Council of Europe. The other, more general, aspect involves the right to gather information on matters of public interest in order to pass that information on to the public. This distinction is relevant when considering the newsgathering methods available to, and deployed by, journalists in the context of disclosures relating to a private company for example. It also highlights the close connection between effective protection for whistle-blowers and the safeguarding of public interest newsgathering. State restrictions on the ability of journalists to access certain information should be subject to close scrutiny by the Court.

The refinement of the ‘public interest’ criterion by the Grand Chamber is therefore an important and welcome development for newsgathering. In its intervention Media Defence also highlighted the emerging global legislative consensus of the importance of ensuring whistle-blower protection and identified relevant factors when considering whistle-blowing in the context of private enterprise.

The Grand Chamber’s judgment is a positive outcome for whistle-blower protection and press freedom, and important for highlighting how the Court can adapt and refine existing case law based on societal developments.

Resources

The intervention can be found here.

The decision of a Chamber of the Third Section can be found here.

The Grand Chamber’s decision can be found here.

(Note: Media Defence was granted permission by the Grand Chamber to intervene on condition the written submissions dis not comment on the facts or merits of the case and only addressed general principles applicable to the determination of the case.)

For further information please contact Media Defence Legal Director Pádraig Hughes at padraig.hughes@mediadefence.org.