Can an employee's freedom of expression trump their confidentiality obligations? The ECtHR weighs in (in a case concerning an employee's personal website)
 |
| From confidentiality to disclosure in 3 Kat-steps (DIY instructions here) |
By reading the very interesting EU Law Live Blog, The IPKat has discovered an intriguing decision (Herbay v Hungary, Appl. No. 11608/15) that the European Court of Human Rights (ECtHR) issued just a few days ago on the thorny issue of whether an employee’s own confidentiality obligations trump their freedom of expression and information under Article 10 of the European Convention on Human Rights (ECHR).
The answer? Great news for IPKat bloggers An employment contract can go far, but not too far.
Let's see what happened and how the Court ruled.
Background
In 2006, the applicant worked as a human resources management expert at a financial institution (Bank O.) in Hungary. In this capacity, he undertook the analysis and calculation of salaries and staffing management. Among other things, he contributed to his employer’s remuneration policy reform.
According to the code of ethics of the bank, he was under an obligation not to publish formally or informally any information relating to the functioning and activities of his employer.
In January 2011, whilst he was still employed by Bank O., the applicant launched a knowledge-sharing website for human resources management-related publications (including articles) and events. The website also contained a presentation of the applicant with his photograph, describing him as an expert in human resources management and indicating that he worked in the human resources department of a large domestic bank, without mentioning his employer.
In February that year, after two articles appeared on the website, the applicant's employment was terminated due to a breach of Bank O.'s confidentiality standards. The bank argued that the applicant’s conduct in providing educational services in the field of human resources management had infringed its economic interests. Moreover, given the nature of his position, the applicant was in possession of information the publication of which would have interfered with the bank’s business interests.
The applicant unsuccessfully challenged his dismissal before the Budapest Labour Court, which found that he had unduly revealed information relating to his employment. The decision was reversed on appeal, but then the Kúria (the Hungarian Supreme Court) upheld a request for review made by the bank.
At this point, the applicant lodged a constitutional complaint, claiming that his activities fell within the scope of his freedom of expression, which had not been taken into proper account by courts. The articles published on his website raised issues of professional and public interest concerning changes to the personal income tax regulations affecting four million employees. The discussion was conducted in a general manner and the articles had not contained confidential information from his employer.
However, his action was dismissed: the Constitutional Court found that reporting on matters which an employee had learned in general in the course of his or her employment was protected by the Fundamental Law to the extent that those matters were of public interest. This was not the case here, as the information at issue had a commercial nature.
At this point, the applicant brought the case to the ECtHR, arguing that Hungarian law which allowed for the termination of his employment based on articles published on his website had infringed his Article 10 freedom.
The Hungarian Government’s key point before the ECtHR was that the applicant’s expression did not qualify for Article 10 protection since his articles had not contributed to a discussion on a public matter, but had instead related almost exclusively to a specific profession.
 |
| At work |
The judgment
The Court recalled that freedom of expression also applies in the context of private employment relations (Heinisch v Germany, No 28274/08) and that the State has a positive obligation to ensure that a fair balance is struck between the competing interest of the individual and of the community as a whole. All this is, in any event, subject to the margin of appreciation enjoyed by the State, which – in the case of commercial speech – is quite broad.
In the context of employment relations, there must be a mutual trust between employer and employee. This means that certain manifestations of freedom of expression that may be legitimate in other situations, would not be so in the context of such relations (Palomo Sánchez and Others, Nos 28955/06).
In the present case, the issue for the ECtHR to consider was whether domestic authorities, in dismissing the applicant’s claims, had adequately secured his right to freedom of expression in the context of labour relations and balanced it against the employer’s right to protection of its commercial interests. To this end, the court considered the following:
(1) The nature of the speech
The ECtHR found that domestic courts had erred in considering that the nature of the speech at hand would be relevant to the determination of whether Article 10 applies: freedom of expression, in fact, is not limited to certain types of information or ideas or forms of expression:
In other words, workplace-related free speech does not only protect comments that demonstrably contribute to a debate on a public matter. The Court cannot therefore agree with the finding of the Constitutional Court that comments made by an employee do not fall within the scope of protection of the right to freedom of expression on the grounds that they are of a professional nature and do not disclose any “public link” which would enable to clearly characterise them as part of a discussion on matters of public interest
(2) The motives of the author
Turning to the examination of this point, the ECtHR recalled that speech motivated by personal grievance or antagonism or by the expectation of personal advantage is not deserving of a particularly high level of protection (Kudeshkina, No 29492/05). However, this was not the case of the applicant.
(3) The damage caused by the speech to the employer
This part of the judgment is very interesting. The ECtHR noted that, according to Hungarian courts, the fact that the applicant had featured on the website as an expert and had authored a contribution on human resources management reflecting knowledge acquired through his work was sufficient to conclude that he had acted to his employer’s detriment.
The ECtHR ruled that, while under Hungarian law employers are entitled to a degree of deference in deciding which conduct could lead to the disruption of working relations even without such disruption being manifest, “neither the applicant’s employer nor the Kúria made any attempt to demonstrate in what way the speech in question could have adversely affected the business interests of Bank O.”
(4) The severity of the sanction imposed
With regard to this point, the ECtHR noted that the decision to terminate the applicant’s employment had been taken without assessing whether a less severe measure could be imposed instead.
 |
| After work |
Conclusion
All the above considered, the ECtHR found that:
while it was for the domestic authorities to carry out a proper assessment of proportionality, the Court reiterates that the enjoyment of the right to freedom of expression should be secured even in the relations between employer and employee […] In the present case, the Court cannot discern any meaningful balancing of the interests at issue by the domestic courts […] The substantive outcome of the labour dispute was dictated purely by contractual considerations between the applicant and Bank O. […] and voided the applicant’s reliance on freedom of expression of any effect.Comment
In the light of the above considerations, the Court finds that in the present case the domestic authorities have failed to demonstrate convincingly that the rejection of the applicant’s challenge against his dismissal was based on a fair balance between the applicant’s right to freedom of expression, on the one hand, and his employer’s right to protect its legitimate business interests, on the other hand. They therefore did not discharge their positive obligations under Article 10 of the Convention.
There has therefore been a violation of this provision [paras 51-53]
This decision confirms that: (1) Article 10 freedom is not limited to certain types of speech or certain types of relations only; and (2) States have a positive obligation to ensure that a fair balance is struck between freedom of expression and other fundamental rights and freedoms, also in the context of private relations.
In the particular context of this case (which would be in particular relevant to employment and breach of confidence matters), it also shows how contractual restrictions on employees' free speech may be overcome by overriding fundamental rights considerations.
Importantly, in enforcing a contractual rule or a workplace policy, it is for the employer to consider the appropriateness of the chosen sanction in light of - in particular and among other things - the motives of the author and the damage that the speech at issue has caused to the employer. The latter, in particular, requires proof of an actual damage that justifies the severity of a sanction like dismissal.
As also noted by the EU Law Live Blog, in an age in which employees tend to be increasingly visible through social media, invitations to speak on certain issues as subject matter experts, etc, a decision like this not only confirms that an employee's personal feed, blog, website, etc conveys their views only, that a tweet is not legal advice (who would think otherwise?), and that one's own opinions are not necessarily those of the employer, etc, but also that all these activities are in principle protected under Article 10 ECHR even in the presence of contractual restrictions. It is for the employer to prove what damage (if any) the employee's speech has caused to its activities and commercial interests.
Can an employee's freedom of expression trump their confidentiality obligations? The ECtHR weighs in (in a case concerning an employee's personal website)
Reviewed by 0x000216
on
Tuesday, November 12, 2019
Rating: 5
Reviewed by 0x000216
on
Tuesday, November 12, 2019
Rating: 5
Entomophobes, among others, will recall the clutch of cases that form the backdrop to this morning’s judgment of the Court of Appeal (Jacob & Jackson LJJ and Sir John Chadwick) in Vestergaard Frandsen & Ors v Bestnet Europe & Ors 
Vestergaard owned the rights to some technical trade secrets which, for the purposes of this tale, resided in a database called Fence. Fence was an extensive repository of ingredients and their proportions used to make long-lasting insecticidal nets (LLINs). It also contained the results of various tests that had been carried out on the nets. LLINs, as the name would suggest, are formulated so as to retain relatively long-term insecticidal properties. The insecticides are not simply sprayed on, or infused into, pre-made fabrics, they are incorporated into the plastic itself before it is extruded into filaments used to form the nets. The idea being that the insecticide gradually leaches out of the filaments ensuring an insecticidal surface remains over a protracted period even if the net is repeatedly washed.
In the summer of 2004 two of the individual defendants, Mr Larsen and Mrs Sig [Merpel notes that if you put them together you’re only a few letters and a typewriter away from a Swedish crime trilogy], left the employment of Vestergaard and entered into competition therewith. They did so in association with a scientist, Dr Skovmand, who was experienced in the field and who, although not previously employed by Vestergaard, had been engaged as a consultant by the company for a long time. As noted in the Court’s judgment (at [5]): he was, in effect, Vestergaard’s head of development.
