Content Regulation / Censorship, Political Expression
Zhang v. Baidu.com, Inc.
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The European Court of Human Rights ruled that Moldova breached Article 10 of the European Convention on Human Rights when it dismissed a civil servant who had revealed information of public interest regarding attempts by high-ranking politicians to influence the judiciary. The court held that Article 10 extends to both public servants and workplace matters. However, the court emphasized that a case-by-case analysis of the context around the release of information – such as the information the complainant released here – was necessary to an Article 10 determination.
Iacob Guja alleged a violation of his right to freedom of expression under Article 10 of the ECHR. Guja, former Head of the Press Department of the Prosecutor General’s Office, claimed that his right to impart information had been impaired when he was dismissed from the Prosecutor General’s Office for disclosing documents regarding ongoing criminal proceedings.
In 2002, four police officers arrested ten individuals who were suspected of election offenses, with one facing additional suspicion as being the leader of a criminal gang. After being released from detention, these individuals made a complaint to the Prosecutor General’s Office, alleging illegal detention and ill treatment by the four arresting officers. Following the complaint, a criminal investigation against these officers commenced.
In response to the investigation, the four police officers jointly wrote a letter to various government officials, including President Voronin, Prime Minister Tarlev, and Deputy Speaker of Parliament, Mr. Misin. Misin forwarded this letter to the Prosecutor General’s Office and included a second letter, which was not marked as confidential but was written on official Parliamentary stationary. At an unspecified time, officials discontinued criminal proceedings against these four officers.
In January 2003, the President made a declaration, which was publicized by the media, calling for a stop to corruption, including public officials’ attempts to pressure law enforcement officers. He called upon officers to resist these pressures. Following the President’s declaration, Guja sent copies of the letters received by the Prosecutor General’s Office to a newspaper, Jurnal de Chişinău. The letters included Misin’s note as well as a letter from A. Ursachi, a deputy minister in the Ministry of the Interior, to the Prosecutor General. Neither letter was marked as confidential. The newspaper printed photographs of the letters to accompany an article with the headline “Vadim Mişin intimidating prosecutors.”
Soon after the article was published, Guja’s employer dismissed him, claiming that Guja had not consulted with his colleagues prior to releasing the letters, and that Guja had given away confidential documents. Guja unsuccessfully sought reinstatement of his job in civil courts. Guja then brought his case to the European Court of Human Rights (ECtHR) on the ground that his right to freedom of expression had been violated. The case then came before the ECtHR, which had previously not heard a case in which a government employee had released internal information to the public.
Guja argued that being dismissed from his job for publicly releasing these letters was a breach of his right to freedom of expression under Article 10 of the ECHR. Specifically, Guja argued that his right to disclose information to a third party was being violated, and that he need not have been the author of the letters for Article 10 to apply. The ECtHR emphasized that Article 10 extends to both public servants and workplace matters and held that Guja’s dismissal from his job for releasing the letters amounted to “‘interference by a public authority’ with his right to freedom of expression under the first paragraph of that Article.” [para. 48]The ECtHR specified that the interference would amount to a breach of Article 10, unless the breach was “‘prescribed by law’, pursued one or more legitimate aims under paragraph 2 and was ‘necessary in a democratic society’ for the achievement of those aims.” [para. 56]The ECtHR did not address whether the breach was “prescribed by law,” and it determined that the legitimate aim was to prevent future disclosure of confidential information.
The ECtHR then had to determine if the disclosure was “necessary in a democratic society.” [para. 60-63] Guja argued that his release of the letters was akin to whistle-blowing illegal conduct, and he supported this argument by pointing to information within the letters, discussing the letters’ authors, and noting the context around which he received the letters. The ECtHR determined that Guja lacked any effective methods of reporting the information, other than releasing the letters to the newspaper, despite the government’s argument to the contrary. However, the ECtHR emphasized that context around the release of information is important. Guja had no other effective means to report the attempted interference by the Deputy Speaker of Parliament with ongoing judicial proceedings, and the Prosecutor General’s Office did not show any willingness to react to the letters. Thus, the ECtHR found that the action of making them public could be justified.
The ECtHR’s Grand Chamber ruled in its judgment that Moldova had violated Guja’s right to freedom of expression and determined that Guja’s dismissal had been an unjustified interference with the right to impart information. The ruling also recognized that the issues at stake, namely the independence of the judiciary and the misconduct of an important political figure, were of great public interest. The sanction imposed on Guja, i.e., dismissal, was considered particularly disproportionate in light of the chilling effect that it could have in the future on civil servants’ willingness to denounce abuses. The ECtHR thus found that Moldova’s interference with the applicant’s right to freedom of expression could not be justified as “necessary in a democratic society.”
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The ECtHR’s ruling is highly influential, particularly in light of the current relevance of cases involving whistle-blowing from civil servants. The ECtHR acknowledged that heavy sanctions against officials are not appropriate when whistle-blowing is motivated by the willingness to highlight issues of high public interest. It also specified that Guja had a right to divulge the information because of the lack of alternative remedies available. Most importantly, the ECtHR restated its opposition to sanctions on the ground that such harsh punishments can provoke a chilling effect and dissuade civil servants from reporting misconduct.
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A decision by the Grand Chamber of the ECtHR is final and binding upon the parties to the case and cannot be appealed.
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