The EUI seminar focus on the legal framework in Europe regarding whistle-blowing, leaking confidential information, “illegal” newsgathering and protection of journalistic sources. In its Recommendation 1916 (2010) on the protection of whistle-blowers, on 29 April 2010, the Parliamentary Assembly of the Council of Europe, referring to its Resolution 1729 (2010) on the protection of whistle-blowers, has stressed the importance of whistle-blowing as a tool to increase accountability and strengthen the fight against corruption and mismanagement. http://cmpf.eui.eu/seminars/whistle-blowing.aspx

1. Whistleblowing
and the
Right to Freedom of Expression and Information
under
the European Human Rights System
Prof. dr. Dirk Voorhoof
Florence EUI
30 September 2013
www.psw.ugent.be/dv
http://cmpf.eui.eu/seminars/whistle-blowing.aspx

2. Whistleblowing
Letteralmente :
soffiare il fischietto
Lanceur d’alerte
Klokkenluider (“bell ringer”)
What is a whistleblower?

3. Definition
A person who exposes misconduct, or fraud, corruption,
mismanagement of alleged dishonest or illegal activity
within an organisation
Internal / external (authorities, regulators, media …)
Public interest in effective management and the
accountability of public affairs and private business
Reporting integrity violations
Employees, civil servants, human rights defenders…

4. Risks
Harassment, retaliation
Disciplinary punishment
Dismissal
Criminal prosecution / conviction / emprisonment
Blacklisting
Threats
Physical violence
Psychological and social discomfort

5. Bradley (Chelsea) Manning
Leaked military info US + video Iraq
35 year imprisonment
Request for presidential pardon
Large support by civil societey (BM Support Network)
http://www.bradleymanning.org/
www.whistleblower.org

6. Edward Snowden
NSA contractor
Global breach of privacy
US surveillance over digital communication
Asylum Russia
2013 Whistleblower Award in Germany
Now candidate for the Sakharov price of the
European Parliament (proposed by Article 19)
(Mandela, Taslima Nasreen, Arab spring activists,
Aung San Suu Kyi…)
http://rt.com/news/snowden-prize-whistleblower-germany-255/

7. Other (famous) examples of
whistleblowers?
- Negligence
- Misuse
- Abuse of power
- Fraude
- Corruption
- Criminal acts
- Irregularities

8. “Deep throat” – Watergate
Informant for Bob Woodward and Carl Bernstein of
Washington Post, 1972
Mark Felt, FBI (2005)
Aleksandr Solzhenitsyn
The Gulag Archipelago 1974
Forced labor camp system in USSR
Exiled
Nobel Prize Literature

9. Jeffrey Wiggand (1995)
Revealed that tobacco industrie had worked on
optimising addiction, being aware how lethal
cigarettes were (“The Insider”)
Law suits, smear campaign
Sheron Watkins (Enron)
Cynthia Cooper (Audit Worldcom)
Coleen Rowley (FBI)
Front cover Time Magazine
Persons of the Year 2002
Paul Van Buitenen
EC Official, irregularities and fraud EU
Resignation of EC (Santer/Cresson)
See also HM Tillack (ECtHR 27/11/2007, POJS)

10. Peter Wright (MI5, UK)
Spycatcher (1985)
Book published in Australia
Injunction, ban, gag orders in UK
ECtHR : UK breached Article 10 ECHR
Observer, Guardian v. UK
Sunday Times no. 2 v. UK
ECtHR 26/11/1991 (prior restraint, public information)

11. Developments :
global vs national
online environment
platforms for whistleblowing
- extra exposure
- encouragement for leaking information
- citizens more becoming concerned about
corruption, embezzlement and fraud in
the financial sector
- media / NGO’s : interesting sources

12. Also journalists, mediaplatforms, NGO’s… involved
Kostas Vaxevanis
Greece, Lagarde-list (prosecuted, not convicted)
Julian Assange
Wikileaks (asylum Ecaudorian Embassy London)
Tokyo Two, Greenpeace
“Informant” on whale meat embezzlement
GP-staff members persecuted
Searches and confiscations, pre-trial detention
Prison sentence (18 m., suspended)

13. Why whistleblowers (WB’s) are
persecuted, harassed, hunted,
imprisoned, dismissed … ?
Task : list up possible offences
that whisteblowers commit

14. - Criminal Law / Criminal procedure Code
- Breach of duty of secrecy, confidentiality
- Intelligence, National Security
- Treason, espionage, aiding the enemy
- Military / Martial Law
- Computer crime / Computer fraud
- Data protection law / Privacy
- Defamation or insult
- (..)

15. - Breach of confidence
- Labour law / labour contract
- Civil servants : administrative law
- Staff regulations
- Insubordination
- Theft
- Tresspassing
- Contempt of Court
- ?

16. Manning, Snowden, Assange …
Existing WB Protection Laws in US not
efficient?
No adequate First Amendment protection
in US for WB’s !

17. US Supreme Court
Garcetti v. Ceballos, 04-5, 547 US 410, 2006
Government employees do not have protection from
retaliation by their employers under the First Amendment if
the alleged speech was produced as part of his/her duties
(5/4).
Whistleblowers who want to pursue a federal case under the
First Amendment must claim the memos or leaked
information were part not only of the official duty but of a
citizen's opinion and discourse of public relevance. This
can be done by alleging that the cause for retaliation is not
the text of the memo but the ideas surrounding it.

18. Perception in Europe is that US disrespects ‘public
interest’ involved in whistleblowing or revealing
illegal activities of US military, US diplomacy, US
intelligence services…
http://www.article19.org/resources.php/resource/37133/en/usa-must-
respect-international-standards-on-protection-of-whistleblowers

19. What is the situation in Europe ?
Paradox :
The PACE 2009 report says with regard to
whistleblowing protection:
“in this field, Europe has much to learn
from the United States”.

20. Why should whistleblowers
be above the law?

21. Fressoz & Roire v. France (1999)
Publication of leaked tax files
In principle journalists are not above the law, but
… the interest of the public can be more
important than enforcement of criminal law
Case showed that conviction of journalists for
breach of professional secrecy and using illegaly
obtained document was a violation of their freedom
of expression
Violation of Article 10
Also Radio Twist v. Slovakia and Dupuis v. France

22. International / UN
ILO Termination of Employment Convention 1982 (ILO no. 158)
Article 5 states that filing a complaint or participation in
proceedings against an employer involving alleged violations
of law or regulations (..) are not valid reasons for dismissal or
termination of contract.
Article 33, UN Convention Against Corruption 2003 (UNCAC)
“Each party shall consider incorporating into its domestic
legal system appropriate measures to provide protection
against any unjustified treatment for any person who
reports in good faith and on reasonable grounds to the
competent authorities any facts concerning offences
established in accordance with this Convention”

23. International / Europe
Art. 24, 3, C, Appendix - European Social Charter 1996 (ETS No163)
Complaint or participation in proceedings against an employer involving
alleged violations of laws or regulations (..) are not valid reasons for
termination of employment
Art. 9 on the protection of employees in COE 1999 Civil Law
Convention on Corruption (ETS No 174).
“Each Party shall provide in its internal law for appropriate
protection against any unjustified sanction for employees who
have reasonable grounds to suspect corruption and who
report in good faith their suspicion to responsible persons or
authorities”.
Art. 22 COE 1999 Criminal Law Convention on Corruption

24. International / Europe
COE COM Code of Conduct for Public Officials, Rec (2000)10
Art. 11
Duty for public officials to treat appropriately, with all necessary
confidentiality, all information and documents acquired by him or her in
the course of, or as a result of his or her employment.
Art. 12
Public officials should report to the competent authorities any evidence,
allegation or suspicion of unlawful or criminal activity relating to the
public service coming to his or her knowledge… The investigation of the
reported facts shall be carried out by the competent authorities
The public administration should ensure that no prejudice is caused to
a public official who reports any of the above on reasonable grounds
and in good faith.

25. EU Anti-Money Laundering Directive 2005/60
Article 27
Member States shall take all appropriate measures in order to
protect employees of the institutions or persons covered by
this Directive who report suspicions of money laundering or
terrorist financing either internally or to the FIU (Financial Intelligence
Unit) from being exposed to threats or hostile action.

26. EU Proposal for a Directive on markets in financial
instruments (repealing Directive 2004/39, MIFID),
Sec 2011 (1226-1277)
Article 77
Reporting of breaches
Member States shall ensure that competent authorities establish
effective mechanisms to encourage reporting of breaches of the
provisions of Regulation …/… (MiFIR) and of national provisions
implementing this Directive to competent authorities.

27. EU Proposal for a Directive on markets in financial instruments
(repealing Directive 2004/39, MIFID)
Sec 2011 (1226-1277)
Article 77
(..)
Those arrangements shall include at least:
(a) specific procedures for the receipt of reports and their follow-up;
(b) appropriate protection for employees of financial institutions who
denounce breaches committed within the financial institution;
(c) protection of personal data concerning both the person who reports
the breaches and the natural person who is allegedly responsible for a
breach (..)
2. Member States shall require financial institutions to have in place
appropriate procedures for their employees to report breaches
internally trough a specific channel.

28. More EU and OLAF (European Anti-Fraud Office)
6 December 2012
The Commission issued new guidelines to remind staff
of whistleblowing obligations
The Commission adopted new guidelines (updating
those of 2004) on whistleblowing to encourage staff to
come forward and report any information pointing to
corruption, fraud and other serious irregularities that
they discover in the line of duty.

29. More EU and OLAF (European Anti-Fraud Office)
6 December 2012
Reporting serious irregularities is a duty, to help the
Commission and the European Anti-Fraud Office detect
and investigate them.
This duty is counterbalanced by solid protection offered
to whistleblowers acting in good faith.
http://europa.eu/rapid/press-release_IP-12-1326_en.htm

30. National laws in Europe
Most countries have “no comprehensive laws for the protection of
“whistle-blowers”, though many have rules covering different
aspects of “whistle-blowing” in their laws governing employment
relations, criminal procedure, media, and specific anti-corruption
measures’ (Austria, Belgium, Bosnia and Herzegovina, Bulgaria,
Croatia, Cyprus, Denmark, Estonia, France, Georgia, Germany,
Greece, Italy, Lithuania, “the former Yugoslav Republic of
Macedonia”, the Netherlands, Norway, Poland, Romania, Serbia,
Slovakia, Slovenia, Sweden, Switzerland, Turkey and the UK)
PACE report’s conclusion 2009 is that much still remains to be
done at the level of national legislation in European countries
Other studies conclude that in Europe “whistleblowing
legislation is generally fragmented and weakly enforced”

31. GAP 2013 report
In stark contrast to the United States, few European
countries have laws directly protecting whistleblowers.
Instead of this type of US comprehensive whistleblower
protection regime, most European Union nations have
only a patchwork of whistleblower protections found in
employment, criminal, media, and anti-corruption laws
The reality in most countries in Europe is that under
current law, employees who engage in effective
whistleblowing have no legal protections from a
retaliatory termination of their employment
http://www.whistleblower.org/storage/documents/TheCurrentStateofWhi
stleblowerLawinEurope.pdf

32. Council of Europe : PACE request for action – Rec. 2010
It recommends that the Committee of Ministers:
- draw up a set of guidelines for the protection of
whistle-blowers, taking into account the guiding
principles stipulated by the Assembly in its Resolution
1729 (2010);
- invite member and observer states of the Council of
Europe to examine their existing legislation and its
implementation with a view to assessing whether it is in
conformity with these guidelines;
- consider drafting a framework convention on the
protection of whistle-blowers.

33. Actual and effective protection
for whistleblowers
ECHR?

34. Actual and effective protection for WB
under Article 10 ECHR?
10.1. Everyone has the right to freedom of expression
Freedom to hold opinions
To express, impart and receive information and ideas
+ without interference by public authority
+ regardless of frontiers.
Licensing system for broadcasting, television/cinema
10.2 Duties and responsibilities
> formalities, conditions, restrictions or penalties
1. Prescribed by law
2. Legitimate aim (..)
3. Necessary in a democratic society

35. Actual and effective protection under
European Human Rights System ?
1. Protection of journalistic sources :
indirect protection for ‘anonymous’ WB’s
Journalists cannot be compelled to give identity of source,
protection against coercive or investigative measures
- Goodwin v. UK (1996) : order to reveal identity /
to hand over document
- Tillack v. Belgium (2007) : searches and confiscations
because of rumours
of bribing (OLAF)
Article 10 and POJS also to protect whistleblowers

36. Protection of journalistic sources essential for press freedom
unless ‘overriding requirement of public interest’
+ subsidiarity and proportionality
+ regardless of illegal or illicit origin
+ protection against searches / confiscations
+ EX ANTE review by judge/impartial body (not PP or police)
Roemen and Schmit v. Luxembourg and Saint-Paul Lux. SA v. Luxembourg
Ernst e.a. v. Belgium and Tillack v. Belgium
Voskuil v. Nl. and Sanoma v. Nl. (Grand Chamber)
Financial Times v. the UK (Interbrew / AB Inbev)
Martin v. France and Ressiot v. France
De Telegraaf Media v. the Netherlands (Security/Intelligence Services)
Nagla v. Latvia
See also Nordisk Film A/S v. Denmark (Child abuse, pedophaelia)

37. 2. Freedom of expression of civil servants
- Glasenapp v. Germany - Kosiek v. Germany (1987)
No Right of Access to Public Service, Article 10 not
applicable in case of dismissal for expressing certain
information of ideas
- Vogt v. Germany (1996)
Article 10 is applicable in case of civil servant
expressing information and ideas. Violation Article 10
- Fuentes Bobo v. Spain (2000)
Sharp criticism on management TVE, dismissal
Violation Article 10

38. 3. Freedom of expression protection of whistleblowing
Guja v. Moldova (2008)
“a civil servant, in the course of his work, may become
aware of in-house information, including secret
information, whose divulgation or publication
corresponds to a strong public interest”
Court considered the dismissal of a civil servant who
had leaked information, more specifically, a letter to the
press, to be an unlawful restriction of the right of
freedom of expression
Violation Article 10

39. Other cases
Wille v. Liechtenstein (1999)
Critical lecture, no prolongation of appointment as a judge
Academic discussion, chilling effect
Violation Article 10
Raichinov v. Bulgaria (2006)
Allegation of corruption by PPG, conviction for insult
Violation Article 10
Kudeshkina v. Russia (2009)
Dismissal of judge after statements in the media about
corruption within Moskou judiciary
Violation Article 10

40. More cases
Peev v. Bulgaria (2007)
Employee PP office criticising Chief Prosecutor in
newspaper. Searches, confiscations, dismissal.
Violation Article 10 (+ 8 +13)
Frankovic v. Poland (2008)
Disciplinary sanction of a doctor who in a medical report for
a patient had made negative remarks about the treatment
and care of the patient in a certain hospital
Improper criticism of colleagues.
ECtHR : to “ban any critical expression in the medical
profession is not consonant with the right to freedom of
expression”
Violation Article 10

41. More cases
Marchenko v. Ukraine (2009)
Allegations by school teacher of personal enrichment and
reprehensible conduct by school principal. No factual basis.
One year prison sentence is disproportionate sanction
Violation Article 10
Sosinowska v. Poland (2011)
Doctor informed authorities about her superior and lack of
quality in treatment of patients, she was reprimanded
However her concern was well being of patients
Violation Article 10

42. No violation Article 10
De Diego Nafria v. Spain (2002)
Bank employee, internal accusation of Governor of Bank of
Spain
Personal attack, serious allegations, no factual basis
Dismissal
Poyraz v. Turkey (2010)
Judicial official, controversial disciplinary investigation about
a judge, comments in the media
Duty of discretion, confidential information
Bathellier v. France (2010), Szima v. Hungary (2012)…

43. No violation Article 10
Grigory Pasko v. Russia (2009)
Military journalist, researcher
Disclosed dumping nuclear waste by Russian Navy
Found in possession
of classified information
in airport
Convicted for treason through espionage for having collected
secret information with the intention of transferring it to a
foreign national
Four years in prison

44. Grigory Pasko v. Russia (2009)
ECtHR : “as a serving military officer, the applicant had been
bound by an obligation of discretion in relation to anything
concerning the performance of his duties”
“Right balance of proportionality between the aim to protect
national security and the means used for that, namely the
sentencing of the applicant to a lenient sentence, much lower
than the minimum stipulated in law”.
No violation Article 10

45. 4. Also employee/employer, private relations
Heinisch v. Germany (2011)
Article 10 of the Convention also applies when the relations
between employer and employee are governed by private law
The State has a positive obligation to protect the right to freedom
of expression, even in the sphere of relations between
individuals
Nurse reported shortcomings in care for elderly people
First to management, later to authorities
Afterwards, when nothing happened, to union, leaflets
Dismissed
Violation of Article 10

46. Guja v. Moldova (2008)
Whistleblower case
Mr. Guja = head of communication of Public Prosecutor’s office
He leaked a letter to the media
Letter gave evidence of influence by a Minister on Public
Prosecutor and administration of justice in a corruption case
Mr. Guja was dismissed because of breach of duty of
professional secrecy
QUESTION
In what context a WB can rely on Article 10?
Under which conditions/criteria?

47. Guja v. Moldova (2008)
Conditions – consistent application?
1. No alternative channels for the disclosure
(+ effective + protection of whistleblower)
2. Public interest in the disclosed information
3. Authenticity of the disclosed information
(+ accurate/reliable)
4. Justifiable damage to employer/administration/others
5. Whether the applicant acted in good faith
(motif = public interest)
6. The severity of the sanction (+ consequences)
Pasko v. Russia (2009)?

48. A European Bradley Manning?
See also report PACE 2003
Countries in which journalists have recently been subjected
to prosecution on espionage charges should clearly and
narrowly define the scope of official secrecy, in public laws
and regulations, in order to eliminate legal insecurity.
Due consideration is to be given to the legitimate need of the
public to be informed of any illicit behaviour by State
organs, including the armed forces, in particular when it
constitutes a threat to human rights, the environment, or
other vital interests of the people.
http://assembly.coe.int/ASP/Doc/XrefViewHTML.asp?FileId=10312&Language=en
Pasko v. Russia (2009)

49. PACE Resolution 1729 (2010) – Guiding Principles
1. Whistle-blowing legislation should be comprehensive
2. Whistle-blowing legislation should focus on providing a
safe alternative to silence
3. As regards the burden of proof, it shall be up to the
employer to establish beyond reasonable doubt that any
measures taken to the detriment of a whistle-blower were
motivated by reasons other than the action of whistle-
blowing
4. Monitoring and evaluation at regular intervals by
independent bodies.

50. PACE Resolution 1729 (2010) – Guiding Principles
- broad definition of protected disclosures
- WB protection to cover both public and private sector
whistle-blowers, including members of the armed forces
and special services, and focus on
° employment law – in particular protection against unfair
dismissals and other forms of employment-related
retaliation;
°criminal law and procedure – in particular protection
against criminal prosecution for defamation or breach of
official or business secrecy, and protection of witnesses;
° media law – in particular POJS;
° specific anti-corruption measures COE Civil Law
Convention on Corruption (ETS No. 174).

51. PACE Resolution 1729 (2010) – Guiding Principles
a. - internal whistle-blowing procedures ensure
° disclosures pertaining to possible problems are
properly investigated;
°the identity of the whistle-blower is only disclosed
with his or her consent, or in order to avert serious and
imminent threats to the public interest;
° the WB legislation should protect anyone who, in
good faith, makes use of existing internal whistle-
blowing channels from any form of retaliation (unfair
dismissal, harassment or any other punitive or
discriminatory treatment).

52. PACE Resolution 1729 (2010) – Guiding Principles
b. where internal channels either do not exist, have not
functioned properly or could reasonably be expected not to
function properly given the nature of the problem raised by
the whistle-blower,
external whistle-blowing, including through the media,
should likewise be protected.

53. PACE Resolution 1729 (2010) – Guiding Principles
Any whistle-blower shall be considered as having acted in
good faith provided he or she had reasonable grounds to
believe that the information disclosed was true, even if it later
turns out that this was not the case, and provided he or she
did not pursue any unlawful or unethical objectives.
WB protection should create a risk for those committing
acts of retaliation by exposing them to counter-claims from
the victimised whistle-blower which could have them
removed from office or otherwise sanctioned.
Whistle-blowing schemes shall also provide for appropriate
protection against accusations made in bad faith.

54. PACE Resolution 1729 (2010) – Guiding Principles
Legislative improvements must be accompanied by a
positive evolution of the cultural attitude towards
whistle-blowing, which must be freed from its previous
association with disloyalty or betrayal
Role of NGO’s

55. Some other issues / discussion
- Whistleblowing : a right or a duty?
- Internal/external?
How to evaluate internal procedure would
not have been effective?
- Employment relation as a condition to be a WB?
- Can the law really protect WB’s ?
Illusion of protection ?

56. Some other issues
- The rights of defence of people implicated in any
allegations must be respected (Article 6 and 8 ECHR)
See ECtHR 16 April 2013, Căşuneanu v. Romania
and ECtHR 18 April 2013, Ageyevy t. Russia.
- Anonimity / identity to stay confidential
- Ombudsman / audit authorities to report
+ protection WB
- What is left of Article 10 if all ECHR-countries
would have performant PA?