Freedom of expression in the employment context
RELEVANT DOMESTIC LAW 20. Act no. XXII of 2012 on the Labour Code, in force at the material time, provided as follows: Article 3 “(5) In the employment relationship, employees shall not engage in any conduct which would jeopardise the legitimate economic interests of the employer, unless so authorised by a legal regulation. ...” 21. Article IX of the Fundamental Law provides as follows: “1. Everyone shall have the right to freedom of speech. ...” THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 22. The applicant complained that the termination of his employment on account of articles published on a website had infringed his right to freedom of expression as protected by Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Admissibility 23. The Government argued that the constitutional complaint mechanism had provided an effective remedy against the contested dismissal decision. They submitted that the Constitutional Court had adjudicated the applicant ’ s case in line with the standards set out in the Court ’ s case-law. Thus, the applicant ’ s right to freedom of expression had not been violated. 24. The applicant disputed the assertion that the Constitutional Court had remedied the grievances complained of, since it had dismissed his constitutional complaint for lack of a link to a right protected by the Fundamental Law. In any event, in the applicant ’ s view, a constitutional complaint in general could not be regarded as an effective remedy, owing to the low percentage of complaints that were upheld. 25. The Court notes that it is not disputed by the parties that the applicant availed himself of the remedy referred to by the Government. Indeed, the applicant lodged a constitutional complaint which was examined on the merits (see paragraphs 18 and 19 above). Thus, the Court is bound to conclude that the applicant complied with the obligation to exhaust domestic remedies. 26. Inasmuch as the Government ’ s submissions may be understood to suggest that the applicant had lost his victim status, the Court notes that the Constitutional Court dismissed the applicant ’ s complaint on 26 June 2017, concluding that the applicant ’ s conduct and the articles published were not protected by Article IX (1) of the Fundamental Law enshrining the right to freedom of expression (see paragraph 21 above). Thus, the decision did not involve any acknowledgment of the violation alleged, nor did it afford the applicant adequate redress. 27. In these circumstances, the Court considers that the applicant may still claim to be a victim of a violation of Article 10 of the Convention. 28. The Court also notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties ’ submissions The parties ’ submissions The parties ’ submissions (a) The applicant 29. The applicant contended that the articles published on the website had raised issues of professional and public interest concerning changes to the personal income tax regulations affecting four million employees. This had, however, been done in a general manner and the articles had not contained confidential information from his employer. In the applicant ’ s view there was no direct connection between the published articles and his former employer ’ s activities either: the website had served as a discussion forum for general human resources knowledge, without disseminating specific information about his work at Bank O. Therefore, the blog entries had caused no detriment to his former employer. 30. According to the applicant, the domestic courts had paid no heed to his arguments that he had been exercising his right to freedom of expression in the public interest, and had limited their analysis to finding that he had breached his contractual obligations. 31. He maintained that he had acted in good faith, raising issues and opinions in a credible, truthful and genuine manner. 32. He also pointed out that he had suffered the most serious legal consequences, since he had been dismissed from his employment. (b) The Government 33. The Government disputed that the applicant ’ s dismissal on account of the knowledge-sharing website had constituted an infringement of his right to freedom of expression as guaranteed by Article 10 § 1 of the Convention. They took the view, relying on the decision of the Constitutional Court, that the applicant ’ s activity did not enjoy the protection afforded to the right to freedom of expression, since it had not contributed to a discussion on a public matter, but had related almost exclusively to a specific profession. 34. In any event the Constitutional Court had adjudicated the applicant ’ s case in line with the standards set out in the Court ’ s case-law. The Court ’ s assessment (a) General principles 35. The general principles developed in the Court ’ s case-law concerning freedom of expression have been summarised in Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina ([GC], no. 17224/11, §§ 5 ‑ 77, 27 June 2017). 36. The Court has held in a number of cases involving the freedom of expression of civil servants that Article 10 applies to the workplace in general (see, for example, Kudeshkina v. Russia, no. 29492/05, § 85, 26 February 2009). The Court has also held that the signalling by an employee in the public sector of illegal conduct or wrongdoing in the workplace should, in certain circumstances, enjoy protection (see Guja v. Moldova [GC], no. 14277/04, § 72, ECHR 2008). It however also held that comments which lay within the applicant ’ s sphere of employment in the civil service and which had been made pursuant to his official duties did not involve any statements or views in the context of a public debate and did not relate to freedom of expression (see Harabin v. Slovakia, no. 58688/11, §§ 151-153, 20 November 2012). 37. The Court has further found that Article 10 of the Convention also applies when the relations between employer and employee are governed, as in the case at hand, by private law, and that the State has a positive obligation to protect the right to freedom of expression even in the sphere of relations between individuals (see Heinisch v. Germany, no. 28274/08, § 44, ECHR 2011 (extracts), with further references). The responsibility of the authorities would be engaged if the facts complained of stemmed from a failure on their part to secure to the applicants the enjoyment of the right enshrined in Article 10 of the Convention. While the boundary between the State ’ s positive and negative obligations under the Convention does not lend itself to precise definition, the applicable principles are, nonetheless, similar. In both contexts regard must be had in particular to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, subject in any event to the margin of appreciation enjoyed by the State (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, §§ 60 and 62, ECHR 2011). The Court has also found that this margin of appreciation is essential in an area as fluctuating as that of commercial speech. It follows that, where commercial speech is concerned, the standards of scrutiny may be less severe (see, mutatis mutandis, Demuth v. Switzerland, no. 38743/97, §§ 41-42, ECHR 2002 ‑ IX, and markt intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, § 33, Series A no. 165); and the margin of appreciation afforded to the national authorities is broad (see Ashby Donald and Others v. France, no. 36769/08, § 39, 10 January 2013). 38. As the Court has previously observed, in order to be fruitful, labour relations must be based on mutual trust. Even if the requirement to act in good faith in the context of an employment contract does not imply an absolute duty of loyalty towards the employer or a duty of discretion to the point of subjecting the worker to the employer ’ s interests, certain manifestations of the right to freedom of expression that may be legitimate in other contexts are not legitimate in that of labour relations (see Palomo Sánchez and Others, cited above, § 76). (b) Application of the above principles in the present case 39. In the present case the measure complained of by the applicant, namely his dismissal, was not taken by a State authority but by a private bank and was upheld by the domestic courts (see paragraphs 12 and 17 above). In those circumstances, the Court finds that it is appropriate to examine the application in terms of the positive obligations of the respondent State under Article 10 of the Convention. The Court will therefore ascertain whether, in the present case, the Hungarian judicial authorities, in dismissing the applicant ’ s claims, adequately secured his right to freedom of expression as guaranteed by Article 10 in the context of labour relations and balanced it against the employer ’ s right to protection of its commercial interests. 40. In the absence of any wrongdoing which the applicant might have sought to uncover, the Court does not find it necessary to enquire into the kind of issues which have been central to its case-law on whistle-blowing (compare Guja, cited above, §§ 73-78), but considers the following elements to be relevant when examining the permissible scope of the restriction of free speech in the employment relationship in the present case: the nature of the speech in question, the motives of the author, the damage, if any, caused by the speech to the employer, and the severity of the sanction imposed. (i) The nature of the speech 41. In rejecting the applicant ’ s argument that his conduct had amounted to the exercise of his right to freedom of expression, the Constitutional Court attributed importance to the nature of the speech on the impugned website. It found that reporting on matters which an employee had learned in general in the course of his or her employment was protected by the Fundamental Law to the extent that those matters were of public interest. In the present case, however, according to the Constitutional Court, the applicant ’ s speech had concerned information of a professional nature acquired by virtue of his employment at Bank O. and had addressed issues relevant only to a specific profession and not to the public as whole. Therefore, the applicant ’ s conduct was not protected by the fundamental right of freedom of expression (see paragraph 19 above). 42. The Court observes the domestic courts noted that the applicant had contributed as a private individual to a website on human resources policies providing information and opinion on recent developments in the field. Not excluding that the published articles might contribute, as alleged by the applicant (see paragraph 29 above), to the ongoing debate on tax issues, those courts found that the website conveyed information of a commercial nature, inviting discussion on the business practices of the audience; and, moreover, that the contested articles were addressed to a limited circle of professionals and did not directly concern the public as a whole. 43. However, as the Court has previously found, such information cannot be excluded from the scope of Article 10 § 1, which does not apply solely to certain types of information or ideas or forms of expression (see markt intern Verlag GmbH and Klaus Beermann, cited above, § 26). In other words, workplace-related free speech does not only protect comments that demonstrably contribute to a debate on a public matter. The Court cannot therefore agree with the finding of the Constitutional Court that comments made by an employee do not fall within the scope of protection of the right to freedom of expression on the grounds that they are of a professional nature and do not disclose any “public link” which would enable to clearly characterise them as part of a discussion on matters of public interest (see paragraph 19 above). (ii) The motives of the author 44. When examining the applicant ’ s motives, the Court is mindful of the fact that an act motivated by a personal grievance or a personal antagonism or the expectation of personal advantage, including pecuniary gain, would not justify a particularly strong level of protection (see Kudeshkina, cited above, § 95). In the present case, however, the Courts notes that the domestic courts did not find that the applicant had acted in pursuit of purely private interests or aired a personal grievance. There is no reason to question the applicant ’ s submission (see paragraph 29 above) to the effect that the issues raised on the website pertained to a profession and were published with the intention of sharing knowledge with and among the audience. (iii) The damage caused by the speech to the employer 45. As regards the damage, if any, suffered by Bank O., it is certainly true that without some degree of control over its employees ’ conduct, it would have little prospect of providing services effectively or pursuing its business strategies. This consideration is even more relevant in a situation where the material published concerned the subject-matter of the applicant ’ s employment, and the speech arguably owed its existence to the author ’ s professional responsibilities and professional knowledge. 46. The case before the domestic courts involved a factual dispute regarding the question whether the articles published conveyed information and opinions directly reflecting policies within Bank O. or more general information on human resources management. The Court observes the conclusion drawn by the Kúria in this regard, which held that the information shared by the applicant was closely related to his employment tasks (see paragraph 17 above). 47. The standard applied by the domestic courts in assessing whether the dissemination of such information had been detrimental to Bank O. and could justify the applicant ’ s dismissal was that of potential damage to legitimate business interests and the possibility of divulging business secrets. Thus, for the Kúria, the mere fact that the applicant had featured as an expert on the website and had authored a contribution on human resources management reflecting knowledge acquired through his work was sufficient to conclude that he had acted to his employer ’ s detriment. 48. The Court accepts that, under Hungarian law, employers are entitled to a degree of deference in deciding which conduct could lead to the disruption of working relations even without such disruption being manifest. However, in the present case neither the applicant ’ s employer nor the Kúria made any attempt to demonstrate in what way the speech in question could have adversely affected the business interests of Bank O. (iv) The severity of the sanction imposed 49. The Court also notes that a rather severe sanction was imposed on the applicant, namely the termination of his employment without any assessment of the availability of a less severe measure. (v) Conclusion 50. In sum, while it was for the domestic authorities to carry out a proper assessment of proportionality, the Court reiterates that the enjoyment of the right to freedom of expression should be secured even in the relations between employer and employee (see the case-law cited in paragraph 37 above). In the present case, the Court cannot discern any meaningful balancing of the interests at issue by the domestic courts: as noted above, the Constitutional Court found that the applicant ’ s fundamental right was not engaged (see paragraph 19 above) and the Kúria did not attribute any relevance to free speech in the present case. The substantive outcome of the labour dispute was dictated purely by contractual considerations between the applicant and Bank O. (see paragraph 17 above) and voided the applicant ’ s reliance on freedom of expression of any effect. 51. In the light of the above considerations, the Court finds that in the present case the domestic authorities have failed to demonstrate convincingly that the rejection of the applicant ’ s challenge against his dismissal was based on a fair balance between the applicant ’ s right to freedom of expression, on the one hand, and his employer ’ s right to protect its legitimate business interests, on the other hand. They therefore did not discharge their positive obligations under Article 10 of the Convention. 52. There has therefore been a violation of this provision. APPLICATION OF ARTICLE 41 OF THE CONVENTION 53. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 54. The applicant claimed 29,478 euros (EUR) in respect of pecuniary damage. This sum comprises the compensation for lost income which would have been awarded to him had he been successful in the domestic proceedings. He also claimed EUR 10,000 in respect of non-pecuniary damage. 55. The Government contested these claims. 56. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. As to non-pecuniary damage, the Court finds it appropriate to award the full sum claimed, that is to say, EUR 10,000, plus any tax that may be chargeable on that amount. Costs and expenses 57. The applicant also claimed EUR 1,468 for the costs and expenses incurred before the domestic courts. This amount corresponds to the court fees at three levels of jurisdiction and the legal expenses paid to the respondent. He also claimed EUR 3,421 for cost and expenses incurred before the Court, comprising EUR 3,000 for his lawyer ’ s fees, equal to thirty hours of legal work at an hourly rate of EUR 100, EUR 375 for translation costs, EUR 24 for postal costs and EUR 22 for copies of judicial documents. 58. The Government contested these claims. 59. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the total sum of EUR 4,800 covering costs under all heads. Default interest 60. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the domestic courts had failed to carry out an adequate exercise to balance the applicant’s right to freedom of expression against the bank’s right to protect its legitimate business interests. In particular, the Court disagreed with domestic court findings that articles on topics that were of interest to a professional audience could not benefit from free speech protection simply because they were not part of a debate of general public interest.