EHRM, 14-02-2023, nr. 21884/18

On 29 June 2016 the Luxembourg District Court, sitting as a criminal court, convicted A.D. and the applicant of theft from one's employer (vol domestique), fraudulent access to a system for the processing or automatic transmission of data, breach of commercial secrecy, breach of professional secrecy and laundering and possession (blanchiment-détention).

A.D. was sentenced to a twelve-month prison term, suspended in its entirety, and to a fine of 1,500 euros (EUR). The applicant was sentenced to a nine-month prison term, suspended in its entirety, and a fine of EUR 1,000. They were also ordered to pay a symbolic sum of one euro to PwC as civil-law compensation in respect of non-pecuniary damage, the civil party having limited its claim to that amount. E.P. was acquitted, on the grounds that he had not participated, within the meaning of the law, as a co-perpetrator or accomplice, in the breach of commercial secrecy or in the breach of professional secrecy.

A.D. and the applicant lodged criminal-law and civil-law appeals against the first-instance judgment. The public prosecutor lodged a criminal-law appeal in respect of A.D., the applicant and E.P.

A.D. and the applicant appealed on points of law against the Court of Appeal's judgment.

In his report A/70/361 of 8 September 2015, the UN Special Rapporteur on the promotion and the protection of the right to freedom of opinion and expression addressed the protection of sources of information and of whistle-blowers. In his argument, ‘the term ‘whistle-blower’ refers to a person who brings to light information that he or she reasonably believes, at the time of disclosure, to be true and to constitute a threat or harm to a specified public interest. The relevant extracts of this report read as follows:

On 29 April 2010 the Parliamentary Assembly of the Council of Europe adopted Resolution 1729(2010) on the protection of ‘whistle-blowers’, in which it recognised the importance of ‘whistle-blowers’, whom it defined as ‘concerned individuals who sound an alarm in order to stop wrongdoings that place fellow human beings at risk — as their actions provide an opportunity to strengthen accountability and bolster the fight against corruption and mismanagement, both in the public and private sectors’. Under the terms of that Resolution:

On 1 October 2019 the Parliamentary Assembly also adopted Resolution 2300(2019) on ‘Improving the protection of whistle-blowers all over Europe’, in which it stated that ‘whistle-blowers play an essential role in any open and transparent democracy. The recognition they are given and the effectiveness of their protection in both law and practice against all forms of retaliation constitute a genuine democracy ‘indicator’’. Under the terms of that Resolution:

In this Resolution, the Assembly noted that many Council of Europe member States (Albania, Croatia, the Czech Republic, Estonia, Finland, France, Georgia, Hungary, Italy, Latvia, Lithuania, the Republic of Moldova, Montenegro, North Macedonia, Poland, Romania, Serbia, the Slovak Republic, Spain, Sweden, Switzerland and the United Kingdom) have passed laws to protect whistle-blowers either generally or at least in certain fields.

After noting that on 16 April 2019 the European Parliament had approved a proposal for a directive aimed at improving the situation of whistle-blowers in all of its member States, the Resolution further emphasised that the Council of Europe member States which were not, or not yet, members of the European Union (hereafter ‘the EU’) also have a strong interest in drawing on the draft directive with a view to adopting or updating legislation in accordance with these new standards.

On 30 April 2014 the Committee of Ministers adopted Recommendation CM/Rec (2014)7 on the protection of whistleblowers, which states:

The Explanatory Memorandum to this Recommendation states:

Directive (EU) 2019/1937 of the European Parliament and of the Council on the protection of persons who report breaches of Union law was adopted on 23 October 2019. The Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 17 December 2021.

The Directive lays down common minimum standards for the protection of persons reporting breaches of European Union law in a range of areas, such as public procurement, financial services, prevention of money laundering and terrorist financing, product safety and compliance, transport safety, protection of the environment, radiation protection and nuclear safety, food and feed safety, animal health and welfare, public health, consumer protection, protection of privacy and personal data, and security of network and information systems.

The relevant provisions of this Directive read as follows:

Article 3

Relationship with other Union acts and national provisions

Article 4

Personal scope

…

Article 6

Conditions for protection of reporting persons

Article 7

Reporting through internal reporting channels

Article 10

Reporting through external reporting channels

Article 15

Public disclosures

Article 19

Prohibition of retaliation

The applicant argued that the domestic courts had applied the criteria identified in the Guja judgment (cited above, hereafter ‘the Guja criteria’) before concluding from them that he was not a whistle-blower and refusing him the protection attached to that status. In this regard, he stressed that although the Chamber had initially granted him whistle-blower status before assessing whether the refusal to allow him to benefit from the protection regime entailed by that status had arisen from a correct application of the ‘Guja criteria’, the Court of Appeal had, conversely, first verified whether the constituent elements for the protection regime for whistle-blowers had been met, before concluding that he did not have whistle-blower status.

The applicant submitted that, in addition to the need to clarify the order in which these questions were to be examined, it was also necessary to specify the conditions for the balancing exercise that was to be conducted in relation to the competing interests when implementing the ‘Guja criteria’. Generally speaking, he criticised the Court of Appeal for having applied the ‘Guja criteria’ in isolation. Relying in this connection on the dissenting opinion attached to the Chamber judgment, he submitted that the weighing-up of the competing interests as part of the ‘fifth criterion of the Guja case-law’ ought not to be conducted in isolation, but in the light of a global analysis, based on Article 10, which took account of all the relevant criteria.

With regard, firstly, to the damage caused by the impugned revelations, to be taken into account in the balancing exercise, the applicant reviewed the development of the Court's case-law and argued that this concept had evolved towards that of ‘detriment to the employer’ (he referred to Heinisch v. Germany, no. 28274/08, §§ 88–90, ECHR 2011 (extracts), and Gawlik v. Liechtenstein, no. 23922/19, § 79, 16 February 2021). The applicant stressed the transformation of the criterion as initially established by the Court, which, in his view, included the need to maintain public confidence in the State. In this connection, the applicant referred to the Court's findings in the cases of Bucur and Toma v. Romania (no. 40238/02, §§ 114-15, 8 January 2013), Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina ([GC], no. 17224/11, § 80, 27 June 2017) and Gawlik (cited above, § 79). He emphasised the consequences of applying the criterion of ‘detriment to the employer’ to a scenario in which the whistle-blower was a private-sector employee. In the present case, this had led to a balancing of the public interest in knowing the impugned disclosure against the specific interest of a given company, which, in the applicant's view, amounted to a potentially dangerous drift.

In his view, such an interpretation of the ‘Guja criteria’ encouraged the idea that the interests being balanced were of equal importance (whatever their respective weight) and was likely to lead to a conflict of interests opposing, on the one hand, the applicant's freedom of expression against the employer's reputation on the other. He argued against such a change, which, in his view, was tantamount to moving from a balancing exercise between different interests to resolving a conflict between the rights protected under Articles 10 and 8 of the Convention.

With regard, secondly, to the public interest in the disclosed information, which was also to be taken into consideration in the balancing exercise, the applicant argued that the Court of Appeal had contradicted itself by initially acknowledging that such an interest existed, before ruling that the disclosed documents had not provided ‘essential, new and previously unknown’ information. By adding these new requirements, which had the effect of restricting the effective protection of freedom of expression, it had broadened the domestic authorities’ margin of appreciation. Such ‘clarifications’ to the concept of ‘information of public interest’ were all the less relevant given that, according to the Court's case-law, the existence of a public debate on a certain matter spoke in favour of further disclosures of information which would contribute to that debate (he referred to Dammann v. Switzerland, no. 77551/01, § 54, 25 April 2006).

The applicant also challenged the Chamber's finding (§ 109 of its judgment) as to the characteristics that the disclosed information should have possessed to justify the detriment caused to the company by its disclosure. Given that his contribution to the ‘Luxleaks’ debate was not considered decisive in assessing the public-interest criterion, it was unclear to him how his involvement in causing damage to his employer's reputation could be regarded as such.

The applicant then returned to the specific features of the present case, which, in his view, were linked to the fact that he worked in the private sector. Analysing the Court's case-law, he argued that the Court of Appeal's ‘partial, inexact and specious’ application of the Guja case-law had resulted in a situation where the balance between the public interest in being informed of the disclosures and the whistle-blower's freedom of expression on the one hand, and a company's commercial reputation on the other, had been swung in favour of the company. He submitted that this amounted to a complete reversal of the approach adopted since the Steel and Morris v. the United Kingdom judgment (no. 68416/01, § 95, ECHR 2005-II).

He emphasised that, having been sanctioned once by his employer PwC (which dismissed him), he had also been sanctioned by the State, specifically by the criminal courts (he referred to Kayasu v. Turkey, nos. 64119/00 and 76292/01, 13 November 2008, and Bucur and Toma, cited above). He stressed the risk of extending application of the criterion of detriment sustained by the employer to the case of whistle-blowing in the context of a private-sector employment relationship. For this reason, he suggested that, with regard to whistle-blowers in the private sector, the criterion of damage sustained by the employer be reserved only to those cases where a professional sanction had been imposed and where the proportionality of that measure was being debated.

In the present case, he emphasised that by having accepted that the applicant's criminal conviction (further to his dismissal) could be justified because his employer had suffered damage to its reputation, the Chamber judgment had succeeded in nullifying the protection of whistle-blowers.

The applicant also recommended that the Guja case-law be developed, by abandoning the criterion of detriment to the employer. In his opinion, the main risk currently threatening whistle-blowers was less disciplinary in nature (reprimand or dismissal) than criminal, as shown by the cases of Edward Snowden, Julian Assange or Chelsea Manning. He argued that such a development in the case-law would be consistent with the European Union Directive on the protection of persons who report breaches of Union law (see paragraph 58 above and, hereafter, ‘the European Directive’), which made no link between protection of whistle-blowers and the harm caused to the employer. In this connection, the applicant pointed out that a large number of Council of Europe member States would be required to transpose this Directive, and their national courts would be required to apply it, so that harmonisation of the applicable law in this area was desirable.

Lastly, the applicant emphasised the need for the Court to move beyond the Guja case-law, by drawing up a definition of whistle-blowing and a genuine status for whistle-blowers. In this connection, he noted, referring to Article L.271-1 of the Luxembourg Labour Code and section 38-12 of the Financial Sector Act (Law of 5 May 1993), that the appliable texts at the relevant time enshrined the existence of a whistle-blower status, without defining it or defining the criteria for application of the legal regime attached to recognition of this status. He also submitted arguments in favour of a system of presumption in favour of persons who came within the category of whistle-blowers, whom he described as ‘watchdogs’ of democracy.

As to the definition of a whistle-blower, the applicant referred to those given in Resolution 1729 (2010) on the protection of ‘whistle-blowers’ of the Parliamentary Assembly of the Council of Europe (see paragraph 55 above; hereafter, ‘Resolution no. 1729(2010)’; in the Recommendation of the Committee of Ministers of the Council of Europe of 30 April 2014 (see paragraph 57 above; hereafter, ‘Recommendation (2014)7’); and in Report A/70/361 of 8 September 2015 by the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (see paragraph 54 above; hereafter, ‘the UN Special Rapporteur’), while calling for a definition by the Court, for the purposes of Article 10 of the Convention, which would be less theoretical.

Based on an analysis of the Court's case-law, he proposed the following definition of a whistle-blower: ‘a person …, who complains of having been punished, by his/her employer and/or the State … for having breached the work-related duty of loyalty, reserve and discretion, by disclosing documented information … obtained in the context of his or her employment, which he/she considers himself/herself ethically bound … to share with persons outside their employment, … and which reveals the existence of moral or criminal wrongdoing which is likely to harm the public interest’. The applicant emphasised that it was the public interest attached to awareness of a certain type of information which was substantively protected through formal protection of the person bringing this information to the public's attention.

With regard to the nature of the oversight to be exercised in this area, the applicant stressed that there was no reason why the principle of subsidiarity, although expressly enshrined by Protocol No. 15, would prevent the Court from carrying out a review, both procedural and substantive, of the grounds and criteria used by the domestic courts in applying the Convention. In this connection, he argued that the Court of Appeal had not respected the manner in which the protection of whistle-blowers, as the lex specialis, interacted with the lex generalis constituted by Article 10, and submitted that if the domestic courts did not fulfil the role incumbent on them under the Convention system, the Court was then required itself to weigh up the interests at stake in order to re-establish justice and the law.

With regard to the balancing exercise conducted by the domestic courts in the present case, the applicant emphasised that it was not enough to refer as a matter of form to the criteria identified by the Court; it was also necessary to apply them correctly. Citing the cases of Perinçek v. Switzerland ([GC], no. 27510/08, ECHR 2015 (extracts)) and Aksu v. Turkey ([GC], nos. 4149/04 and 41029/04, ECHR 2012), the applicant pointed out that ‘[if] the balance struck by the national judicial authorities is unsatisfactory, in particular because the importance or the scope of one of the fundamental rights at stake was not duly considered, the margin of appreciation accorded to the decisions of the national courts will be a narrow one’.

According to the applicant, in the present case the national authorities had complied with neither the requirements of the Von Hannover v. Germany (no. 2) case-law ([GC], nos. 40660/08 and 60641/08, ECHR 2012), nor those of the Axel Springer AG v. Germany (no. 2) case-law (no. 48311/10, 10 July 2014), particularly with regard to assessment of the chilling effect of the contested sanction. This fact ought to lead the Court, in keeping with the principle of subsidiarity, to substitute its assessment for that of the national courts.

The applicant concluded by arguing that, in the circumstances of the present case, to accept the Court of Appeal's findings would seriously undermine the effectiveness of the protection guaranteed to whistle-blowers under Article 10 of the Convention.

The Government considered the applicant's position as a desire to see the Court amend its case-law on whistle-blowers so that persons claiming the protection attached to this status would no longer have to establish that the public interest in the information disclosed by them outweighed the damage sustained by the employer as a result of that disclosure. The Government did not accept the applicant's claims in this respect and subscribed to the Chamber judgment in the present case (particularly at §§ 95–99 and 109–111).

Relying on the national margin of appreciation, the Government submitted that the domestic courts had scrupulously complied with the requirements identified in the Court's case-law with regard to the protection of whistle-blowers.

Citing the case of Jersild v. Denmark (23 September 1994, § 31, Series A no. 298), the Government submitted that the Court had circumscribed the scope of its review of the necessity, in a democratic society, of an interference under Article 10 of the Convention. Noting, moreover, that the present case concerned a conflict between the applicant's right to impart information and his employer's right to protection of its reputation, they referred to the Von Hannover (no. 2) judgment (cited above, § 106). With regard to the specific requirements identified under Article 10 of the Convention once an individual asserting the right to disclose information had claimed whistle-blower status (referring to Guja, cited above, §§ 73–76), the Government submitted that in the present case the domestic courts had correctly applied the ‘Guja criteria’, particularly in respect of the fifth criterion relating to the balancing exercise to be conducted between the public interest in disclosure of the information and the detriment to the employer.

The Government also argued that the body of case-law developed by the Court was sufficiently clear, both in terms of the principles laid down and the assessment criteria defined for their implementation, to provide the national authorities with the necessary guidance for the proper application of the relevant standards of protection and for an accurate assessment of the respective weight of the rights and interests at stake in a given case. They argued that the ‘Guja criteria’ which, moreover, had been confirmed in recent cases examined by the Court provided the domestic authorities with an adequate framework to enable them to ensure the protection of whistle-blowers’ freedom of expression (they referred, for example, to Norman v. the United Kingdom, no. 41387/17, §§ 83 et seq., 6 July 2021).

The Government further submitted that only the fifth ‘Guja criterion’, relating to the balancing of the public interest in the disclosed information with regard to the resultant damage sustained by the employer, was under discussion before the Grand Chamber, and specified that their observations were confined to how that criterion had been applied. They stated that, in finding that the disclosures in question were of limited public interest and that there had been no compelling reason for the applicant, after A.D.'s disclosure, to commit a further breach of the law in appropriating and disclosing confidential documents (§ 33 of the Chamber judgment), the domestic courts had conducted a balancing exercise which corresponded to the review criteria identified in the Guja judgment. In so doing, they had held that, although the information disclosed by the applicant had a certain public interest, this interest had nonetheless been very modest, in that it:

The Government further emphasised that the disclosure, which had been made in breach of the professional secrecy by which the applicant was bound as an employee of an auditing company, in the same way as an employee of a doctor or lawyer, had infringed three categories of rights and interests:

The fact that the applicant's employer had assessed the damage sustained at only one symbolic euro, which was a common claim in Luxembourg, did not alter these considerations. In the Government's submission, it could not be disputed that the victim of a violation of a right guaranteed by the Convention might prefer to obtain recognition of that violation rather than financial compensation for the damage, which, furthermore, was difficult to quantify in the present case.

Given all these considerations, the Government concluded that the Court of Appeal had not exceeded the margin of appreciation afforded to the national authorities in finding that the damage sustained by the employer, assessed in the specific context of the so-called Luxleaks case, outweighed the public interest in the disclosure of the relevant tax returns. They concluded that the applicant's conviction and the imposition of a criminal fine for breach of professional secrecy could not amount to a violation of Article 10 of the Convention.

Turning more specifically to the alleged public interest in the disclosure of the information in issue, the Government submitted that the domestic courts had not interpreted it restrictively. They refuted the applicant's analysis that the domestic courts had created a new criterion by requiring the disclosure of ‘new information’. Departing on this point from the authors of the joint dissenting opinion attached to the Chamber judgment, they argued that the provision of ‘essential, new and [previously] unknown information’ was not a condition for establishing the existence of a public interest in its disclosure, but was rather one element, among others, for assessing the existence of such a public interest in this specific case. They endorsed the findings made on this point in the Chamber judgment (§§ 31, 109–110).

According to the Government, the public interest in disclosure could not systematically prevail over the harm done to the rights and interests of others, otherwise professional secrecy and the right to protection of reputation would be rendered meaningless. In their view, a meagre contribution to the public debate such as that made by the impugned disclosure in the present case could not justify the serious damage to the reputation of the applicant's employer, in breach, moreover, of the professional secrecy imposed by the law in order to protect the rights of others. They argued that the concept of ‘the public interest of the information disclosed’, a precondition to enjoying additional protection, presupposed that a disclosure made in breach of the secrecy imposed by law was justified by the inherent value of the information revealed and its contribution to the public debate. They submitted that the information disclosed in the present case could not be described as illustrating the issues raised by the Luxleaks case, in so far as the tax returns disclosed by the applicant were not directly related to the practice of ATAs, challenged by A.D. and E.P., who had been acquitted.

More generally, the Government contested the applicant's claims that the protection afforded to an initial whistle-blower should subsequently be extended to any person who made further disclosures in the same general context. They challenged the idea that any ‘illustration’ of the elements of a debate of general interest should be covered by the protection afforded to whistle-blowers. In the Government's view, the care taken by the Court in identifying the numerous cumulative criteria that must be met for a person to qualify as a whistle-blower illustrated the exceptional nature of this additional protection. The development called for by the applicant would run counter to the limits which, in their view, ought to be placed on the right to impart information, particularly in areas which could prove sensitive for States and which were frequently at the heart of perfectly legitimate public debates, as was the case with regard to the Grand Duchy of Luxembourg's tax policy. It would also weaken the scope of the legal obligations of secrecy and confidentiality, imposed with a view to protecting the rights of others, as was the case, in particular, for company auditors. It would also affect the contractual relations between companies operating in this sector and their clients, as no contracting parties would ever be safe from disclosures concerning not only matters that could reasonably be considered as something that warranted being brought to the public's attention, on account of their unlawful nature or the harm they represented for the public interest, but potentially also any confidential matter relating to the business life or personal assets of the clients or the director of the company, the employer or the client.

In that connection, the Government emphasised that the confidentiality to which the applicant had been bound did not arise solely from the contractual stipulations binding him to his employer, but resulted from an obligation imposed by law on company auditors. They noted that he had thus been in a situation comparable to that of a doctor or lawyer who held information about a patient or client and chose to reveal it, in breach of his or her duty of professional confidentiality. The professional confidentiality imposed on auditors was intended to protect their clients' data, that is, the rights of others. As the Court had held, ‘the nature and extent of loyalty owed by an employee in a particular case has an impact on the weighing of the employee's rights and the conflicting interests of the employer’ (referring to Heinisch, cited above, § 64). In the Government's view, this was indeed a conflict of rights and they considered it inconceivable, in the light of the Court's settled case-law and in particular the Von Hannover (no. 2) judgment (cited above), that the protection of the applicant's rights should be regarded as more legitimate a priori than protection of his employer's rights.

Assuming that the obligation of confidentiality on civil servants could be imposed with greater force than that established, even by law, in private-sector employment relationships, the Government submitted that, equally, the public interest in information disclosed by a civil servant was, a priori, greater than the public interest arising from the disclosure of private information. Thus, the Government disputed the applicant's suggestion that the disclosure of information obtained in the context of a private-sector employment relationship should imply a less strict compliance with the criteria established by the Court's case-law.

Furthermore, the Government pointed out that, by virtue of the principle of subsidiarity, it was not for the Court to substitute its assessment for that of the domestic courts unless there were weighty grounds for doing so. In that connection, they noted that domestic courts' decisions were adopted after the examination of case files that were often voluminous, adversarial proceedings that were frequently wide-ranging, and in-depth investigations. At national level, the facts in issue could thus be assessed by four judicial bodies, which had had to evaluate all the elements of the case and weigh up the rights and interests at stake in the light of the Court's case-law. The Government further noted that the self-restraint exercised by the Court under the principle of subsidiarity was also respected in the domestic system, for similar reasons, by the Court of Cassation (see § 40 of the Chamber judgment).

Calling this restraint into question could give rise to errors of assessment and expose the Court to the risk of ruling on the basis of insufficient evidence, thereby leading to conclusions that were inconsistent with the evidence in the case file. The Government pointed out that, to avoid such a danger, the Court's review should be confined to assessing the compatibility with its case-law of the reasoning given for the domestic courts' decisions, while refraining from reviewing the merits of the reasons given, provided they were adequate and free from contradiction. In the present case, the Government submitted that the domestic courts had identified and weighed up the rights and interests at issue, having regard to the criteria established in the Court's case-law. Although, in the light of all the criteria laid down by the Court, it had been impossible to grant the applicant whistle-blower status, these courts had taken account of his good faith and his motives, and had imposed only a very limited penalty compared with those potentially available under Luxembourg law. It followed that the Court, having regard to the national margin of appreciation afforded to the States, ought to conclude that there had been no violation of Article 10 of the Convention in the present case.

The Government also contested the applicant's analysis to the effect that European Directive 2019/1937 amounted to an extension of whistle-blower protection. They argued that although the Directive did not formally make the protection of whistle-blowers conditional on prior assessment of the damage caused to the official body or employer to which the person who disclosed the information was answerable, it could not however be inferred that it took no account at all of such damage. They submitted that this damage was taken into account not through a balancing of the competing interests, but through the conditions to which the Directive subjected the protection of whistle-blowers. The Government emphasised that this protection applied only in strictly defined cases, which they detailed with reference to Articles 2, 3, 5, 6, 14 and 15 of the Directive. They argued that the conditions which the Directive imposed for an individual disclosing confidential information to be able to enjoy protection required that a series of complex criteria had to be met, relating to the subject matter of the information disclosed, the form of its disclosure (which could be public only where alternative forms of disclosure had yielded no results and in scenarios that were exhaustively set out) and the obligation to have regard to respect for various forms of secrecy (professional secrecy of doctors and lawyers, for example). They also asserted that the EU Parliament had ensured that competing interests were balanced, and referred in this respect to recital 33 of the Directive (see paragraph 58 above).

More generally, the Government considered that, in the absence of any rules contradicting or modifying the substance of the Court's case-law, the principles and criteria laid down therein provided a stable legal framework, guaranteeing a high level of protection for whistle-blowers, in a manner commensurate with their contribution to debates in the public interest. They submitted that the domestic courts' application of those criteria in the present case had demonstrated that same level of protection, stressing that only legitimate reasons, compatible with the Court's case-law, had led to the applicant being denied the benefit of that protection.

The MLA argued that permitting domestic courts to examine the extent to which a disclosure included ‘essential, new and previously unknown information’ in the context of review of the proportionality of breaches of Article 10 of the Convention would have serious implications for the effectiveness of whistle-blower protection. It emphasised both the legal uncertainty that these criteria were likely to cause and the practical impossibility for whistle-blowers to comply with these new criteria. They would lead to a situation where States no longer took responsibility regarding their obligations to investigate human-rights violations, in so far as it was often necessary for the alarm to be raised several times on the same subject before complaints were effectively dealt with by the public authorities. In this connection, MLA argued that resorting to media coverage was usually the necessary pre-condition for whistle-blowing to be effective, since long-term and far-reaching institutional changes could only be achieved by raising the alert in the mass media.

MLA referred to sociological research showing that the effectiveness of whistle-blowing protection systems depended on their intelligibility and predictability. It submitted, however, that requiring that the information disclosed be ‘essential, new and previously unknown’ would be a source of considerable legal uncertainty for whistle-blowers and would reduce the ability of ‘the watchdogs of democracy’ to fulfil their function of fuelling public-interest debates. Furthermore, this would give credence to the idea that a public debate could be held instantaneously or frozen in time, whereas citizens' attitudes to issues of general interest evolved over time. Lastly, such a requirement would be totally unsuited to the profiles of whistle-blowers, in today's world of social networks.

MLA further stressed that the European Directive only required the whistle-blower to have reasonable grounds to believe that the information was true at the time of reporting (Article 6 § 1 of the Directive). It noted that international best practice demonstrated the existence of a standard of ‘reasonable belief’ as to the authenticity of the information disclosed. More generally, it relied on the explanatory memorandum of the Directive (recital 43, see paragraph 58 above) to emphasise that the criteria for access to whistle-blower status should be sufficiently open so that any person likely to have reasonable suspicions could raise the alarm and obtain protection in this respect. MLA argued that to take account of the ‘newness’ of the information would defeat the purpose of the Directive, which could present the national courts with the dilemma of having to choose between the application of Convention law and the application of EU law, leading to a weakening of the force and effectiveness of Convention law and of the Court's judgments.

Media Defence submitted that the issues to be determined in this case were likely to have a significant impact on how investigative journalism was conducted, particularly in a context in which journalistic sources were coming under increasing pressure throughout the territory of the member States of the Council of Europe. In this connection, Media Defence emphasised that whistle-blowers played an important role as journalistic sources by disclosing important information on a range of matters relating to the public interest. Any reduction in the level of protection available to them would, by extension, impact on the ability of the press to do its job. It referred to the terms of an OECD report1.finding that ‘whistle-blower protection is the ultimate line of defence for safeguarding the public interest’.

Media Defence relied in this respect on the European Directive, the Preamble to which stated that the protection of whistle-blowers as journalistic sources was crucial for safeguarding the ‘watchdog’ role of investigative journalism in democratic societies. By way of illustration, Media Defence pointed out that numerous cases of corruption and malfeasance had come to light in recent years because of whistle-blowers and referred to the disclosures of information concerning Facebook and Boeing, and to the Panama Papers. The inability of the press to obtain information from private entities reinforced, in its view, the importance of the information that whistle-blowers were likely to communicate.

Media Defence further stressed the importance of ensuring that whistle-blowers could count on a legal protection framework that was clear, coherent and precise. Any uncertainty in this area would inevitably have a chilling effect.

Lastly, while recognising that the duty of loyalty and discretion had to be taken into account in assessing whistle-blowing cases, Media Defence submitted that it should apply to a lesser degree where the disclosure of information was by a private-sector employee. It stressed that while the aim of the State was, or should be, the public good, the aim of a private enterprise remained that of profit.

WBN argued that the criterion of ‘essential, new and previously unknown’ information was contrary to international protection standards and even to the Court's case-law. Application of this criterion would result in whistle-blowers losing the legal protection they currently enjoyed and would mark a break with the clear position adopted by the Court to date. This would lead to an a posteriori analysis of the situation replacing consideration of a whistle-blower's individual perspective ex ante, and would thus be a source of legal uncertainty for any whistle-blower.

According to WBN, although the ‘Guja criteria’ required clarification to take account of and adapt to the constant increase in whistle-blowing cases, the fact remained that these criteria had for years provided a protection framework, which was a source of legal certainty.

WBN also emphasised the need to avoid placing the Court's case-law in conflict with the European Directive. In this connection, WBN described the differences which, in its view, existed between the Court's case-law and the Directive, noting in particular that the Directive refrained from imposing the preferential use of internal reporting and left it to the whistle-blower to choose the reporting channel that he or she deemed to be the most effective for disclosing information. WBN also stressed that, with regard to the whistle-blower's motivation, the Directive did not include any condition relating to his or her good faith.

Lastly, WBN referred to the joint dissenting opinion attached to the Chamber judgment and stressed that legal certainty was an essential dimension for the effectiveness of protection for whistle-blowers, who exposed themselves to very severe forms of retaliation, preventing them from earning their living correctly or supporting their families for years.

The basic principles concerning the necessity in a democratic society of interference with the exercise of freedom of expression are well established in the Court's case-law and have been summarised as follows in, among other authorities, Hertel v. Switzerland (25 August 1998, § 46, Reports of Judgments and Decisions 1998-VI), Steel and Morris (cited above § 87) and Guja (cited above, § 69):