Report No. 179
European Court and Commission:
The European court and Commission have also laid down similar principles such as those laid down by the English courts. Apart from that, they are governed by Art.10 of the European Convention on Human Rights and Fundamental Freedoms which guarantees a 'right to know'.
Before the UK Human Rights Act, 1998 came into force in England, (i.e. before 2/10/2000), in a case arising from England relief was granted by European Court in Goodwin v. United Kingdom, 1996-II Rep. Judgments 55 and decisions 483 (1996). One Mr. Goodwin, a journalist proposed to publish information supplied by an informant about Titre Ltd., and the company obtained injunction.
The trial Judge ordered Mr. Goodwin to reveal his source so that the company can take proceedings against the informant. He refused to do so and was fined 500 Pounds for contempt. This order was even upheld by the Court of Appeal and the House of Lords. However, the European Court held that the order breached Article 10 of the European Convention, which refers to freedom of speech and expression. It held:
"if journalists could be compelled to reveal their resources, this would make it much more difficult for them to obtain information and as, a consequence, to inform the public about matters of public interest".
So far as public sector employees in UK are concerned, the European Court held that there must be a proper balance between freedom of expression of the employee and the corresponding rights of the employer to expect loyalty and confidence from the employee. (see Handyside v. UK) (1981. E.H. R.R. 737). This is because the freedom is not only a personal right but is meant to serve public interest.
In another case, it was held that the electorate has a right to be sufficiently informed about irregularities or mal-administration. (Ticehurt v. British Tele Communication plc 1992. 56 (IRLR 219) and Faccenda Chicken v. Fowler 1986 LCR 291. The argument is strongest when applied to a public sector employer because the jobs there involve the carrying out of government policy. (see 1997 Public Law 594 by Lucy Vickers).
At one time, in 1985, in Van Der Heijden v. The Netherlands, (1985) D&R.42, the European Commission on Human Rights acknowledged that dismissal consequent to the exercise of the right to free speech by a whistle blower was not liable to challenge.
But in 1995, the European Court took a contrary view in Vogt v. Germany: (1996) 21. E.H.R.R. 205. The case involved the dismissal of a teacher who was a member of an extremist political party. The court held that Article 10 of the European Convention was breached. Vogt. was a member of staff at the time of her dismissal. (It was a judgment by 10 judges against 9) The dismissal was held not valid and the employee's freedom of expression was upheld.
But restrictions contained in a professional code of conduct governing medical staff were treated as valid being a rule 'prescribed by law'. Barthold v. Germany 1985 (7) EHRR 383. 57
In order for a restriction to be "necessary in a democratic society", the restriction must be proportionate to the legitimate aim pursued. (Handyside v. UK, 1981 EHRR 737). The court allows a 'margin of appreciation' to States in their application of Article 10 of the European Convention, accepting that what is proportionate can vary according to different contexts and can depend upon the type and subject matter of the speech.
The Court will more readily conclude that the restriction on freedom of speech is invalid if it amounts to a total ban of free speech and where the penalty comprises of criminal sanction. (Lingens v. Austria (1986) 8, EHRR 407. Thorgierason v. Iceland: (1991) 14 EHRR 843 and Jacubowski v. Germany: (1995) 14 EHRR 64.
An employee may contend that dismissal resulted in an effective ban on speech (though an ex-employee may still have a right to speak out) and the Court and Commission have further recognized that a threat of legal proceedings could also inhibit public debate: Lingens v. Austria: 1986 8 EHRR 407.
In considering the proportionality of dismissal as a response to the exercise of freedom of speech, the following factors can be considered (Van Der Heijden v. The Netherland (1985 D&R 42).
(i) the nature of the applicant's post 58
(ii) the applicant's conduct in that post
(iii) the averments of the expression of the opinion, and
(iv) the nature of the options expressed.
(i) As to (i), the nature of the post, a Judge and a teacher (who criticized provincial authorities and heads of the school) were said to have impliedly accepted restriction in their free speech (Morrisens v. Belgium 1988 D&R 56 and B&K (1986) D&P 45 and Hasledine v. UK 1992 DER 225.
In Vogt, (supra) the majority held that dismissal was a severe sanction as it had the effect preventing Mrs. Vogt from getting a job as a teacher elsewhere.
(ii) As to (ii), the applicants' conduct in the post will also be relevant. The freedom to speak about workplace may be more restricted than a criticism of matters relating to funding for hospitals.
(iii) As to (iii) , the circumstances of the speech, where the speech is on T.V., the Court may find that the restriction is appropriate. (Morrisens v. Belgium) 1988 D&R 56. The Nolan Committee in UK has held that publicity through a private TV channel may not be objectionable in as much as in a democratic process, such publicity should not be restricted.
(iv) In regard to (iv), the nature of the opinion expressed and the relevance of the type of speech or political debate is given greater protection by the 59 European Court. In Castells v. Spain (1992) 14 EHRR 445, the Court pointed out that:
"in the democratic system, the actions or omissions of the government must be subject to the close scrutiny not only of legislature and judicial authorities, but also of the press and public opinion".
(see also Schwabe v. Austria (1993) 14 H&LJ 26 and Oberschlick v. Austria (1991) 19 EHRR 389.
The European Court's decisions thus have given greater protection to employees of public sector. (see in this connection 'Whistle Blowing in the public Sector and the ECHR' by Lucy Vickers (1997) Public Law, p.594).
The International Labour Organization Convention, 158 on Termination of Employment (see ILO, 68th Session 1982) is of potential value to whistle blowers. Article 5 (c) thereof provided that the:
"filing of a compliant or the participation in proceedings against an employer involving alleged violation of laws or regulation or recourse to competent administrative authorities should not be regarded as a reason for dismissal."
This Convention has not been ratified by UK but certain provisions in Employment Protection (Consolidation) Act recognize such a protection.
The USA:
The US courts also laid down the same principle that was laid down by the English courts and the European Courts but they based their decision on a principle of 'public policy'.
In the United States, 'whistle blowing' is one of the public policy exceptions to the doctrine of employment-at-will. The employee who alleges wrongful discharge from service can bring an action against the employer to enforce public policy (Cummins v. EG & G Seallol Inc. (1988) 690 F.2d. 134.
It is a feature of whistle blowing disputes in US that Government employees can comment on their employer and have free speech guaranteed under the First and Fourteenth Amendments.
Many major American companies have established formal Ombudsman systems. (see Brody, 'Listen to your Whistle Blower' (1986) Fortune, p.48) (See also Minding Your Business (London) by Winfield, 1990).
In the US, some cases even suggest that it would be contrary to public policy if an employee is sacked for refusing to obey breach of the professional code of ethics applicable to him. Pierce v. Orth Pharmaceutical Corporation (1980) 84 N. J 58 = 417. A.2d 505).
The above decisions of the English Courts, the European Court and Commission and the US Courts amply protect the interest of the whistle blower on the ground of public interest and on the basis of the public policy. We shall however refer to the statutory provisions in UK, Australia, New Zealand and US separately in
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