Reassessing the Framework for the Protection of Civil Servant Whistleblowers in the European Court of Human Rights

Abstract

The European Court of Human Rights has included civil servant whistleblowers in the protective ambit of Article 10 ECHR. In doing so, it has recognised that unauthorised disclosures of information are a legitimate means for the public to become aware of government misconduct. The article argues that the ECtHR should revisit its approach to proportionality in such cases. In determining whether a restriction to the civil servant whistleblower’s free speech was necessary in a democratic society, the Court weighs what the article identifies as the quasi-public watchdog function of whistleblowers (namely their role in shedding light on matters of public concern) against their duties and responsibilities as civil servants. In some instances, the Court gives primacy to whistleblowers’ duties of loyalty to the government of the day over their contribution to the transparency and accountability of public bodies. The article argues that this approach can be faulted for failing to adequately consider the key justification that underpins the Court’s recognition of ‘blowing the whistle’ as a form of speech, namely the audience interest in receiving the information the whistleblower discloses. In light of this, the article argues that the Court should give primacy to the watchdog function of whistleblowers. It challenges the manner in which considerations that obstruct the audience’s access to information on government misconduct have featured in proportionality. The article concludes by making suggestions on how the ECtHR can adopt a more principled and coherent approach to proportionality in whistleblowing cases.