Defamation / Reputation
Afanasyev v. Zlotnikov
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Rolf-Udo Langner was an employee of the Housing Office of the Municipality of Dresden, Germany. During a staff meeting, Langner publicly accused the Deputy Mayor for Economy and Housing of committing “perversion of justice” by issuing an unlawful demolition permit. The Municipality of Dresden later dismissed Langner primarily based on his statement that allegedly damaged the Deputy Mayor’s superior reputation. The Saxon Labour Court of Appeal upheld the dismissal on the grounds that Langner’s statement as well as his subsequent written submissions were insulting and slanderous.
Langner then filed an application in the European Court of Human Rights, alleging that his employment termination violated his right to freedom of expression guaranteed under Article 10 of the European Convention on Human Rights. After assessing his motivation in making the statements and the necessity of the dismissal as a form of interference with his right to freedom of expression, the Court distinguished the case from those involving “whistle-blowing,” an action warranting special protection under Article 10 of the Convention. It concluded that the dismissal did not amount to an unreasonable or disproportionate interference with his right to freedom of expression.
Rolf-Udo Langner was employed as the head of a subdivision at the Housing Office of the Municipality of Dresden, responsible for sanctioning the misuse of government property in the municipality.
On December 11, 1998, during a staff meeting, Langner publicly accused the Deputy Mayor for Economy and Housing of committing a “perversion of justice” by issuing an unlawful demolition permit. The Deputy Mayor was elected to govern, inter alia, the Housing Office, and a “perversion of justice” was the name of a specific violation of the law. Later, on December 17, 1998, Langner reissued and defended his accusations in writing with further allegation that the official “ruthlessly pursued politico-economic interests.”
In March 1999, the government terminated Langner’s employment, citing primarily his December 11 statements. The termination letter claimed that the statements were unjustified and had irrevocably destroyed the official’s superior reputation. In July 1999, a local newspaper published a letter to the editor in which Langner expressed his opinion that the Deputy Mayor lacked any competence in resolving problems relating to housing issues.
The Dresden Labor Court ruled that Langner’s employment had not been terminated because the dismissal could not be justified under Section 1 of the Unfair Dismissal Act. On appeal, the Saxon Labour Court of Appeal affirmed the judgment. Dresden Municipality then appealed to the Federal Labor Court. It found that lower courts had erred in their assessment of the seriousness of Langner’s unfounded allegation of “perversion of justice.”
In March 2011, Langner filed an application with the European Court of Human Rights, alleging that his employment dismissal violated his right to freedom of expression protected under Article 10 of the European Convention on Human Rights.
The Fifth Section of the European Court of Human Rights unanimously rendered the decision.
Langner argued that the staff meeting under domestic law was a place to express internal criticisms and that his statements were entirely work-related and not intended to reach the public. According to him, under domestic labor law, “the expression of an erroneous legal opinion may not lead to sanctions by the employer.” [para. 31] Consequently, he had the right to comment on the unlawfulness of the Deputy Mayor’s decisions. The government, on the other hand, contended that the employment dismissal was a justified interference pursuant to the legitimate aim of protecting reputation or the rights of others and to prevent the dissemination of confidential information.
The Court first reiterated that the protection of Article 10 on the right to freedom of expression “extends to the workplace in general and to the public service in particular.” [para. 39] It then ruled that Langner’s dismissal was prescribed by law within the meaning of Article 10(2) as it was based on Section 53 of the Collective Agreement for Public Service Employees in connection with Section 1 of the Unfair Dismissal Act. It also found that the termination pursued the legitimate aim of “protecting the Deputy Mayor’s honour and a professional work environment at the Housing Office.”
The Court then proceeded with determining whether the termination was “necessary in a democratic society.” Based on the Court’s case law, the word “necessary” implies the existence of a pressing social need, which requires assessing “the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient.” [para. 42] Specific to labor-related speech, the Court underscored that “employees have a duty of loyalty, reserve and discretion to their employer. This is particularly so in the case of the public service, since the very nature of public service requires its employees to be bound by a duty of loyalty and discretion.” [para. 43] Additionally, it was of the opinion that in certain circumstances, a public employee’s speech alerting an illegal conduct enjoys protection, including when “the employee concerned is the only person, or part of a small category of persons, aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large.” [para. 44]
Applying the above-mentioned standards, the Court first found that while Langner argued that his statements were motivated by his desire to “blow the whistle” on misgivings within the department, they were more likely motivated by personal reasons, because he did not bring up the accusations in question until two years after their occurrence. In reaching this assessment, the Court referred to the Federal Labour Court’s finding that the statements were made in response to the Deputy Mayor’s decision in dissolving the subdivision where Langner was in charged of. Furthermore, the Court noted that he did not directly report the alleged misconduct to the Deputy Mayor’s superior, nor to the public prosecution. The Court also found that the allegations were not related to the agenda of the staff meeting. Accordingly, the Court held that the case must be distinguished from “cases of ‘whistle-blowing’, an action warranting special protection under Article 10 of the Convention, in which an employee reports a criminal offence in order to draw attention to alleged unlawful conduct of the employer.” [para. 47]
As to the veracity of the accusation that the Deputy Mayor had committed perversion justice by issuing an unlawful demolition permit, the Court relied on the Saxon Labour Court of Appeal’s examination of the evidence that found such allegation without merits. Accordingly, the Court was of the opinion that Langner, as the long-serving head of the subdivision in charge of sanctioning misuse of housing property, should have been well-acquainted with the legality of the Deputy Mayor’s conduct but failed to undertake his obligation of verifying whether the conduct was unlawful.
As to whether the dismissal was a proportional interference with Langner’s right to freedom of expression, the Court ruled that even though employment termination amounts to “the heaviest sanction possible under labour law,” the dismissal at issue was not unreasonable under Article 10 as the domestic courts had found that based on Langner’s behavior, he was likely to reproach the Deputy Mayor’s conduct in the presence of other employees and in public.
Accordingly, the European Court of Human Rights the employment dismissal did not violate Langner’s right to freedom of expression under Article 10 of the Convention.
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Case significance refers to how influential the case is and how its significance changes over time.
This decision puts ECtHR States Parties on notice that it will uphold the dismissal of a public employee for making unfounded allegations against public officials if domestic courts, after conducting a thorough investigation, find that the allegations in question are sufficiently grave.
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