Access to Public Information, Content Regulation / Censorship, Protection of Sources
Toronto Star Newspapers Ltd. v. Ontario
Closed Expands Expression
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The European Court of Human Rights held that a whistleblower seeking to correct government censorship cannot be fired – and thus his freedom of expression violated – so long as the whistleblowing is done in “good faith.”
Gábor Matúz, a Hungarian citizen born in 1963, first began working for Hungarian state television (Magyar Televízió Zrt) in 2001. Mr. Matúz served as “editor and presenter” of one of the television programs, Night Shelter (Éjjeli menedék). His work contract was amended in 2002 to include new clauses as to what obligations and duties Mr. Matúz owed the station. Specifically, Mr. Matúz was “bound by professional confidentiality” and forbidden from divulging confidential documents or information. The contractual remedy for breaching any of these obligations was immediate termination. Mr. Matúz concurrently became chairman of the Trade Union of Public Service Broadcasters.
In 2003, the station appointed a new “cultural director” who began making frequent “suggestions” to the station’s top personnel; these suggestions included modifications and deletions of upcoming content. Many of the station’s editors considered the director’s suggestions censorship, and Mr. Matúz, along with other employees, began raising their concerns about this censorship internally. These concerns were voiced to several administrators, including the station president. However, these efforts turned fruitless and Mr. Matúz became more desperate.
As a “last-ditch” effort to fight censorship, Mr. Matúz, in 2004, published a book entitled The Antifascist and the Hungarista – Secrets from the Hungarian Television (Az antifasiszta és a hungarista – Titkok a Magyar Televízióból). Although it contained a preface stating that the readers, not the author, would judge whether censorship was ongoing at the station, its later chapters showcased letters from the director containing various deletions and suggestions he had for Mr. Matúz’s program. Soon thereafter, Mr. Matúz’s position was terminated.
Mr. Matúz filed suit in the Budapest Labour Court, but his termination was upheld, as the court found since he had clearly breached a term of his contract, the firing was merited. The court further found that his position as trade union chairman did not trump the primary duties of loyalty and confidentiality he owed to the station. On June 13, 2009, the Budapest Regional Court dismissed his appeal; the appellate court further added that Mr. Matúz had damaged the reputation of the station by publishing the book. On May 26, 2010, the Hungarian Supreme Court agreed, simply finding that the termination was the proper contractual remedy for Mr. Matúz’s violation of his duties. Notably, no court evaluated whether the termination violated Mr. Matúz’s right to freedom of expression. Thereafter, he appealed this matter to the ECtHR.
The ECtHR engaged in a four part-analysis in determining whether the station violated Mr. Matúz’s fundamental right to freedom of expression when it terminated him for divulging allegedly confidential information. Eventually, the seven-member panel of the ECtHR unanimously held that all three Hungarian courts’ decisions should be reversed because the firing did, in fact, impinge upon Mr. Matuz’s fundamental rights under Article 10 of the ECHR.
First, the court found that the station had interfered with Mr. Matúz’s right to freedom of expression when it terminated him following the book’s publication. Second, however, the ECtHR found that his firing was “prescribed by law” since it was permissible under both Mr. Matúz’s contract with the station as well as under the Hungarian Labour Code. Third, the court found that his termination did pursue a legitimate aim since the “prevention of disclosure of confidential information and protection of the reputation or rights of others” were valid reasons for letting Mr. Matúz go.
Fourth, and most importantly, the court engaged in a lengthy analysis of whether the interference was “necessary in a democratic society,” which is the statutory basis under Article 10 for infringing upon a fundamental right such as freedom of expression. Following its own jurisprudence, the court stated that whether firing him was “necessary” meant determining whether the termination fulfilled a “pressing social need.”
Under Guja v. Moldova, No. 14277/04 (2008), a case involving the disclosure of state secrets, the court applied a variety of factors in deciding that the termination was not necessary in a democratic society.
The ECtHR placed special emphasis on the fact that the lower Hungarian courts had not considered Mr. Matúz’s fundamental rights at all in deciding whether his termination was warranted. Instead, the ECtHR criticized the Hungarian courts for merely viewing this dispute as a contractual employment matter. Had these courts engaged in the proper analysis, they would have come to the conclusion that what Mr. Matúz divulged was of extreme, valid public interest and that he had a fundamental right to do so — perhaps even having an express duty to fight censorship.
The court did not disagree with the trial court’s finding that the station’s reputation was certainly harmed as a result of Mr. Matúz’s disclosures. However, the fact that (1) another online publication had already “leaked” the same information that Mr. Matúz did in his book by the time it was published; (2) he tried to remedy the situation internally before divulging this information to the public; and (3) his disclosures were closely related to his responsibilities as chairman of the trade union justified the book’s publication.
In conclusion, the ECtHR awarded Mr. Matúz €500 in damages for both pecuniary and non-pecuniary losses. This award was much less than the €42,250 in combined losses Mr. Matúz claimed.
In his analysis, Professor Dirk Voorhoof highlighted the “last resorts” doctrine and how this case affirms and may in fact expand protections for whistleblowers. Professor Voorhoof noted that, so long as a protected employee first tries to remedy a situation “in-house,” these employees, which include “journalists, publishers, media and NGOs,” as well as public servants, “can count on the highest standards of protection of freedom of expression. If that employee faced any negative consequences of this last resort whistleblowing – such as termination from their job – Article 10 of the ECHR could now serve as a backstop against such reprecussions.
Additionally, Professor Voorhoof pointed out the court’s insistence that the public has a right to know about exactly the kind of conduct which Matúz disclosed, such as “official wrongdoing or corruption.” Furthermore, the officials being targeted by a whistleblower may not also have the right to sue for defamation, since, according to Professor Voorhoof, “a right to sue in defamation . . . could easily be abused and might prevent free and open debate on matters of public interest or scrutiny of the spending of public money.” This hypothetical right to sue would have, to use a phrase from American legal jurisprudence, a chilling effect on the disclosure of governmental matters.
Professor Voorhoof believes that this decision, along with other milestone whistleblowing cases heard by the ECtHR, puts ECHR member states on notice that national law should provide appropriate channels and recourse for whistleblowers; simply taking punitive measures such as criminal fines or termination from a public job will not be tolerated so long as the whistleblowing was done as a last resort after internal supervisors failed to take the potential disclosure seriously.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This Judgment sends a very clear message to the contracting members of the ECHR: No one, whether a public or private employee, can be terminated from their job for engaging in the “good faith” fight against censorship. Somewhat surprisingly, the ECtHR completely ignored an express contractual provision — either maintain confidentiality or be fired — to which Mr. Matúz voluntarily consented. The decision could have enormously important implications should human rights violations ever be alleged by, for example, a member of WikiLeaks. Although the ECtHR did not explain in great detail if there is a line in terms of exactly what state or corporate secrets may be divulged without penalty, this case sets extremely important precedent for the protection of the right to freedom of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
This case was not referred to the Grand Chamber for further review. Thus, the case establishes important precedent for both the ECtHR itself as well as courts in all the contracting nations to the ECHR. Public and private employers alike are now on notice that only under very limited, strictly-defined circumstances may an employee be fired for leaking censored information to the public provided that the disclosures are done in “good faith.”
Let us know if you notice errors or if the case analysis needs revision.