Whistleblowers and confidentiality breaches: is freedom of expression a defence?

Article 10 and its relevance to whistleblowing

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.

Whistleblower conviction breached Article 10

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 commercial and professional secrecy rules. 

After unsuccessfully appealing against his conviction, Halet went to Strasbourg, where the Court has since ruled (overturning a decision of its Lower Chamber) that Article 10 protected him as a whistleblower when he reported tax matters that were of public interest, and that his criminal conviction was a disproportionate interference with his Article 10 right. In the Court’s view, his disclosure made an essential contribution to public debate on tax evasion and optimisation practices in Luxembourg at the time; that benefit outweighed the detrimental effects of the disclosure, including Halet’s theft of data and breach of secrecy rules, and the harm to PwC and its clients. 

Implications for employers

The ruling has been hailed a “big victory” for whistleblowers.  However, employers can be reassured that it is not a green light for workers to say what they want; confidentiality obligations can, and should, still be imposed, provided that they allow workers to blow the whistle as permitted by national law.

Whistleblowers who are disciplined or sued for confidentiality breaches could bring claims for detriment or victimisation under whistleblowing laws. They will, however, face a high bar in mounting an Article 10 defence, as some of the criteria that must be met are stricter than those under the EU Whistleblower Directive or the Public Interest Disclosure Act 1998. This includes a duty to act “in good faith” and “carefully verify”, as far as possible, that the information reported is “accurate and reliable” to minimise any harm to the employer; they must still also overcome the balancing test. In short, while Halet won his case in a unique context, a different whistleblower in a different context could face more of a challenge.