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Abstract
In its recent case law, the European Court of Human Rights has extended freedom of expression protection to whistleblowers, including those who work for the intelligence and security sector. Thus, contracting parties to the European Convention on Human Rights are required to balance any damage to national security caused by the disclosure, with the public interest in the information revealed, before handing down sanctions to the whistleblower for a breach of official secrecy. The article will identify, and critically evaluate, three possible approaches to balancing national security with the whistleblower's right to freedom of expression and the public interest in the disclosure of the information. These approaches are first, an absolute ban on external disclosures for intelligence officials; second, a broad exemption from criminal sanctions or other forms of retaliation when the interest in the information disclosed outweighs national security concerns; and finally, protection from reprisals provided only for specific disclosures or categories of wrongdoing, which are exhaustively enumerated in the law. It will examine the compatibility of each approach with nascent Council of Europe whistleblower protection standards and conclude that the final approach, in spite of its deficiencies, can best guarantee the whistleblower's right to free speech while ensuring that security is protected.
Acknowledgements
The author would like to thank Prof. Patrick Birkinshaw, Dr. Elisenda Casanas-Adam and Dr. Myriam Feinberg.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributor
Dimitrios Kagiaros is Teaching Fellow in Public Law and Human Rights Law at the University of Edinburgh Law School.
Notes
1 Whistleblowing is ‘the reporting by employees or former employees of illegal, irregular, dangerous or unethical practices by employers'. International Labour Organisation, ‘ILO Thesaurus', http://www.ilo.org/thesaurus/defaulten.asp. Also see Transparency International, ‘International Principles for Whistleblower Legislation’, Report published 5 November 2013, http://www.transparency.org/whatwedo/pub/international_principles_for_whistleblower_legislation; OECD, ‘G20 Anti-Corruption Action Plan: Protection for Whistleblowers, Study on Whistleblower Protection Frameworks, Compendium of Best Practices and Guiding Principles for Legislation (2011)’, http://www.oecd.org/g20/topics/anti-corruption/48972967.pdf; and David Lewis, A Global Approach to Public Interest Disclosure: What Can we Learn from Existing Whistleblowing Legislation and Research? (Cheltenham: Edward Elgar, 2010).
2 On the United Nations (UN) level, protection is provided through the UN Convention against Corruption (2003) Article 33. Protection afforded in the Council of Europe (COE) will be examined in detail below.
3 The scope of the article is limited to individuals who are employed in the intelligence community and the security sector and are bound by secrecy laws or confidentiality agreements relating to the disclosure of intelligence information. For an analysis and definitions of security services and intelligence agencies in the COE context, see European Commission for Democracy through Law (Venice Commission), ‘Report on the Democratic Oversight of the Security Services' (2007), http://www.europarl.europa.eu/meetdocs/2009_2014/documents/libe/dv/3_cdl-ad%282007%29016_/3_cdl-ad%282007%29016_en.pdf.
4 As in the convictions of David Shayler and Katharine Gun in the UK, and Chelsea Manning and Edward Snowden in the US.
5 Palmer Stephanie, ‘Tightening Secrecy Law: the Official Secrets Act 1989’, Public Law (1990): 252.
6 G. Robert Vaughn, Successes and Failures of Whistleblower Laws (Cheltenham: Edward Elgar Publishing, 2012), 314.
7 For a thorough examination of the reprisals whistleblowers experience see Alford Fred, Whistleblowers: Broken Lives and Organizational Power (Ithaca, NY: Cornell University Press, 2001); and P.B. Jubb, ‘Whistleblowing: A Restrictive Definition and Interpretation’, Journal of Business Ethics 21 (1999): 77.
8 Vaughn, Successes and Failures, 314.
9 These will be examined in detail in below.
10 For an analysis of the good faith requirement in the ECtHR case law see John Bowers and others, Whistleblowing: Law and Practice (Oxford: Oxford University Press, 2012), para. 11.140.
11 These are Luxembourg, Romania, Slovenia and the UK. See Transparency International, Whistleblowing in Europe: Legal Protections for Whistleblowers in the EU (Transparency International, 2013), 10, http://www.transparency.org/whatwedo/publication/whistleblowing_in_europe_legal_protections_for_whistleblowers_in_the_eu.
12 Ibid.
13 Employment Rights Act 1996 s43B (3).
14 Transparency International, Whistleblowing in Europe, 14.
15 Article 3 and Article 10 of law No. 51/1991 of 29 July 1991 on official secrecy. For prosecutions of whistleblowers see ECtHR, Bucur and Toma v. Romania (App. No. 40238/02, 8 January 2013).
16 Iain Cameron, National Security and the European Convention on Human Rights (The Hague: Kluwer International Law, 2000), 382.
17 Swedish Criminal Code, chapter 19, sections 5 and 7.
18 Official Secrets Act 1989 s1.
19 See COE Parliamentary Assembly, ‘Fair Trial Issues in Criminal Cases Concerning Espionage or Divulging State Secrets', 25 September 2006, Report by Christos Pourgourides, http://assembly.coe.int/ASP/Doc/XrefViewHTML.asp?FileID=9149&Language=EN#P391_61374.
20 Ibid., at [57] and [58].
21 Ibid. The report by Rapporteur Pourgourides contains an exhaustive analysis and comparison on the regulation of official secrecy in the COE region in paras [56]–[68].
22 Recommendation CM/Rec(2014)7 of the Committee of Ministers to member states on the protection of whistleblowers. Adopted by the Committee of Ministers on 30 April 2014, at the 1198th meeting of the Ministers' Deputies.
23 Steve Foster, ‘Are We Becoming Afraid of Free Speech?’, Coventry Law Journal 18 (2013): 93.
24 Francis Jacobs, Robin White and Clare Ovey, The European Convention on Human Rights (Oxford: Oxford University Press, 2010), 312.
25 Ibid.
26 Ibid., 325.
27 ECtHR, Silver and Others v. United Kingdom, (Application No. 5947/72; 6205/73; 7052/75; 7061/75; 7107/75; 7113/75; 7136/75, 25 March 1983) at [97]. On the use of proportionality see Julian Rivers, ‘Proportionality and Variable Intensity of Review’, Cambridge Law Journal 65 (2006): 174.
28 Eyal Benvenisti, ‘Margin of Appreciation, Consensus and Universal Standards', NYU Journal of International Law and Policy 31 (1998–1999): 843.
29 Paul Mahoney and Lawrence Early, ‘Freedom of Expression and National Security: Judicial and Policy Approaches under the European Convention on Human Rights and Other Council of Europe Instruments', in Secrecy and Liberty: National Security, Freedom of Expression and Access to Information, ed. Sandra Coliver et al. (The Netherlands: Kluwer International, 1999), 116. See also Leigh Ian, ‘Case Comment: Spycatcher in Strasbourg’, Public Law (1992): 200, 203. On the abuse of national security see Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Oxford: Intersentia, 2002), 104; Jonas Christophersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Court of Human Rights (Brill, 2009); Peter Noorlander, ‘Fighting Words – The War on Terror and Media Freedom', in Freedom of Expression and the Media, ed. Merris Amos, Jackie Harrison and Lorna Woods (The Netherlands: Martinus Nijhoff Publishers/Brill Academic, 2012) 229. In the court's case law see ECtHR, Leander v. Sweden (App. No. 9248/81, 26 March 1987), ECtHR, Klass and others v. Germany (App. No. 5029/71, 6 September 1978), ECtHR, A. and others v. United Kingdom (App. No. 3455/05, 19 February 2009).
30 ECtHR, Stoll v. Switzerland (App. No. 69698/01, 10 December 2007), at [155].
31 Paul Hoffman and Kate Martin, ‘United States', in Secrecy and Liberty: National Security, Freedom of Expression and Access to Information, ed. Sandra Coliver et al. (The Netherlands: Kluwer International, 1999), 496.
32 Council of Europe Parliamentary Assembly, Resolution 1551 (2007) ‘Fair Trial Issues in Criminal Cases Concerning Espionage or Divulging State Secrets', 19 April 2007 at [9].
33 Council of Europe Parliamentary Assembly, Resolution 1507 (2006) ‘Alleged Secret Detentions and Unlawful Inter-State Transfers of Detainees Involving Council of Europe Member States', 27 June 2006 at [19.5.].
34 Council of Europe, ‘Call for Protection of Whistleblowers Who Reveal State Wrongdoing’, 2 October 2013, http://www.assembly.coe.int/nw/xml/News/News-View-EN.asp?newsid=4669&lang=2&cat=8.
35 Council of Europe Parliamentary Assembly, Resolution 1729 (2010) ‘Protection of Whistleblowers', 29 April 2010 at [1].
36 Ibid., at [6.1.2.].
37 Ibid., at [6.1.1.]. For an in-depth analysis of Resolution 1729 see David Lewis, ‘The Council of Europe Resolution and Recommendation on the Protection of Whistleblowers', Industrial Law Journal 39 (2010): 72.
38 Resolution 1729 at [6.2.1.].
39 Ibid., at [ 6.2.3.].
40 Recommendation CM/Rec(2014)7 of the Committee of Ministers.
41 Council of Europe, Parliamentary Assembly Resolution 1838 (2011) ‘Abuse of State Secrecy and National Security: Obstacles to Parliamentary and Judicial Scrutiny of Human Rights Violations', 6 October 2011 at [8].
42 Council of Europe, Parliamentary Assembly Resolution 1877 (2012) ‘The Protection of Freedom of Expression and Information on the Internet and Online Media’, 25 April 2012 at [4].
43 Council of Europe, Parliamentary Assembly Resolution 1954 (2013) on ‘National Security and Access to Information’, 2 October 2013 at [9.7.].
44 See for instance ECtHR, Handyside v. United Kingdom (App. No. 5493/72, 7 December 1976), ECtHR, Steel and Morris v. United Kingdom (Application No. 68416/01, 15 February 2005), Lingens v. Austria (Application No. 9815/82, 8 July 1986), Vogt v. Germany (App. No. 17851/91, 26 September 1995).
45 ECtHR, Goodwin v. United Kingdom (App. No. 17488/90, 27 March 1996), at [39].
46 Jacobs, White and Ovey, The European Convention, 433; and ECtHR, Prager and Oberschlick v. Austria (App. No. 15974/90, 26 April 1995), at [38].
47 ECtHR, Financial Times Ltd and Others v. UK (App. No. 821/03, 15 December 2009).
48 ECtHR, Guja v. Moldova (App. No. 14277/04, 12 February 2008).
49 Jacobs, White and Ovey, The European Convention, 442.
50 Guja v. Moldova at [74]. This position was reiterated in the subsequent cases of ECtHR, Heinisch v. Germany (App. No. 28274/08 21 July 2011); and ECtHR, Sosinowska v. Poland (App. No. 10247/09, 18 October 2011).
51 ECtHR, Bucur and Toma v. Romania (App. No. 40238/02, 8 January 2013).
52 See for instance ECtHR, Hadjianastassiou v. Greece (App. No. 12945/87, 16 December 1992); and ECtHR, Pasko v. Russia (App. No. 69519/01, 22 October 2010).
53 Hadjianastassiou at [47].
54 Bucur at [102].
55 Ibid.
56 Near and Miceli refer to this step as the ‘triggering event’ and define it as ‘an activity that is considered wrongful, rather than an acceptable but not optimal organizational activity’ in Marcia Miceli and Janet Near, Blowing the Whistle: The Organizational and Legal Implications for Companies and Employees (New York: Lexington Books, 1992), 17 (emphasis added).
57 For further analysis on this process see Rahul Sagar, Secrets and Leaks: The Dilemma of State Secrecy (Princeton, NJ: Princeton University Press, 2013), 103–26.
58 Venice Commission Report, ‘Oversight of Security Services', 4.
59 Rahul Sagar, ‘On Combating the Abuse of State Secrecy’, The Journal of Political Philosophy 15 (2007): 424.
60 See also Sissela Bok, ‘Whistleblowing and Professional Responsibility', in Ethical Issues in Business: Inquiries, Cases, and Readings, ed. Peg Tittle (Ontario: Broadview Press, 2000), 70.
61 Mika Morse, ‘Honor or Betrayal: The Ethics of Government Lawyer Whistleblowers', Georgetown Journal of Legal Ethics 23 (2010): 448.
62 Richard Flathman, The Public Interest: An Essay Concerning the Normative Discourse of Politics (New York: Wiley, 1966), 13.
63 One could argue that this assessment on the public interest in public disclosure is made by the whistleblower in conjunction with the medium that will publish it.
64 See for instance Stella Rimington, Open Secret (London: Arrow Books, 2002), 186; and Rahul Sagar, ‘Wikileaks and Democracy’, in Wikileaks and the Consequences: Internet, Media, Politics, ed. Heinrich Geiselberger (Frankfurt: Suhrkamp, 2010), 201–223.
65 See ECtHR, Murray v. United Kingdom (App. No. 14310/88, 28 October 1994); Vereniging Weekblad Bluf v. The Netherlands (App. No. 16616/90, 9 February 1995); and ECtHR, Telegraaf Media Nederland and others v. Netherlands (App. No. 39315/06, 22 November 2012).
66 UK Official Secrets Act 1989, s 1 (1). The Espionage Act 1917 in the US makes for a similar ‘broad and sweeping prohibition’. Stephen Vladeck, ‘The Espionage Act and National Security Whistleblowing after Garcetti’, American University Law Review 57 (2007–2008): 1534.
67 See Ann Rogers, Secrecy and Power in the British State: A History of the Official Secrets Act (London: Pluto Press, 1997); Laurence Lustgarten and Ian Leigh, In From the Cold (Oxford: Clarendon Press, 1994); Christopher Moran, Classified: Secrecy and the State in Modern Britain (Cambridge: Cambridge University Press, 2013).
68 A.T.H. Smith, ‘Security Services, Leaks and the Public Interest’ Cambridge Law Journal 61 (2002): 515.
69 UK House of Commons Public Administration Select Committee, ‘Leaks and Whistleblowing in Whitehall: Tenth Report of Session 2008-09', HC 83 11.
70 See ECtHR, Ahmed and Others v. United Kingdom (App. No. 22954/93, 2 September 1998).
71 Jamie Sasser, ‘Silenced Citizens: The Post-Garcetti Landscape for Public Sector Employees working in National Security', University of Richmond Law Review 41 (2006–2007): 760.
72 Helen Fenwick, Civil Liberties and Human Rights (Oxford: Routledge-Cavendish, 2007), 597.
73 William Freivogel, ‘Publishing National Security Secrets: The Case For Benign Indeterminacy’, Journal of National Security Law and Policy 3 (2009): 98.
74 Guja at [73]. See also ECtHR, Morissens v. Belgium (App. No. 11389/85, Commission decision 3 May 1988).
75 The existence of internal mechanisms was the justification used in R v. Shayler [2002] UKHL 11 by the Law Lords in the UK to justify the compatibility of the OSA with Article 10. The Lords argued that there was no need to examine the efficiency of such mechanisms. This justification seems weak in light of the COE standards that were subsequent to the Shayler judgment, thus putting into question the compatibility of the OSA with free speech. This is the system also currently followed in New Zealand where the particularly broad Protected Disclosures Act 2000 does not cover national security whistleblowers. Security sector employees can only approach an Ombudsman, the Inspector-General of Intelligence and Security. David Banisar, ‘Whistleblowing: International Standards and Developments', in Corruption and Transparency: Debating the Frontiers between State, Market and Society, ed. I.E. Sandoval World Bank-Institute for Social Research (Washington, DC: UNAM, 2011, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1753180 45. In the US, intelligence officials are allowed to approach the House and Senate Intelligence Committees with national security disclosures under the Military Whistleblower Protection Act 1988, and the Intelligence Community Whistleblower Act 1998. See Louis Fisher, ‘National Security Whistleblowers' (Report for the Congressional Research Service, Library of Congress 2005), http://www.fas.org/sgp/crs/natsec/RL33215.pdf at 45.
76 Sagar, Secrets and Leaks, 133.
77 Ibid.
78 Ibid.
79 Morse, ‘Honor or Betrayal’, 449.
80 Janet Near and Marcia Miceli, ‘Organizational Dissidence: The case of Whistle-Blowing’, Journal of Business Ethics 4 (1985): 11; Terry Dworkin and Melissa Baucus, ‘Internal vs. External Whistleblowers: A Comparison of Whistleblowing Processes', Journal of Business Ethics 17 (1998): 1295. For a more recent study conducted in the UK, see Public Concern At Work, ‘Report on “Whistleblowing: The Inside Story”, http://pcaw.org.uk/files/Whistleblowing%20-%20the%20inside%20story%20FINAL.pdf at 5.
81 Guja [80–4]; Heinisch [72–6]. Also see dissenting opinion in ECtHR, Kudeshkina v. Russia (App. No. 29492/05, 14 September 2009).
82 Resolution 1729 [6.2.3.].
83 Heinisch [72–6]; Bucur [97].
84 An ideal internal mechanism would include: ‘a clear statement that malpractice is taken seriously in the organisation … respect for the confidentiality of staff raising concern … an opportunity to raise concern outside the management structure and effective follow up mechanisms that will provide the whistleblower with information on how their concern has been addressed'. See Guy Dehn, ‘Whistleblowing and Integrity: A New Perspective' , http://www.cfoi.org.uk/pdf/corruptiongd.pdf.
85 Palmer, for instance, argues that if internal mechanisms fail, intelligence officials should be permitted to use a public interest defence if prosecuted. Palmer, ‘Tightening Secrecy Law’, 252.
86 (R.S.C., 1985, c. O-5)
87 Ibid., s15.
88 Ibid.
89 Transparency International, Whistleblowing in Europe, 79.
90 Andrew Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (Oxford: Oxford University Press, 2012), 178.
91 ECtHR, Dupuis and others v. France (App. No. 1914/02, 7 June 2007), [37].
92 Guja at [74].
93 Ibid.
94 Ibid., at [87]
95 Ibid., at [88].
96 Paul Latimer and A.J. Brown, ‘Whistleblower Laws: International Best Practice’, UNSW Law Journal 31 (2008): 782.
97 Dirk Voorhoof, The Right to Freedom of Expression and Information under the European Human Rights System: Towards a More Transparent Democratic Society (European University Institute, 2014), 18, http://cadmus.eui.eu/bitstream/handle/1814/29871/RSCAS_2014_12.pdf?sequence=1.
98 ECtHR, Voskuil v. Netherlands (App No. 64752/01, 22 November 2007).
99 Heinisch [66]; Dupuis [40]; ECtHR, Surek v. Turkey (no. 1) (App. No. 26682/95, 8 July 1999) [61].
100 Dupuis [41]. See also ECtHR, Fressoz and Roire v. France (App. No. 29183/95, 21 January 1999).
101 Cameron, National Security, 42.
102 Bucur [101].
103 David Luban, ‘Taking Out the Adversary: The Assault on Progressive Public-Interest Lawyers', California Law Review 91 (2003): 210.
104 See Marion Hersh, ‘Whistleblowers – Heroes or Traitors? Individual and Collective Responsibility for Ethical Behaviour’, Annual Reviews in Control 26 (2002): 244; and Martin Brian, ‘Illusions of Whistleblower Protection’, UTS Law Review 5 (2003): 122.
105 In the Snowden case for instance, a federal judge held that the policy of the intelligence agencies that Snowden disclosed was lawful. See ACLU v. Clapper (No. 13-3994, S.D. New York, 28 December 2013).
106 Patricia Popelier and Catherine Van De Heyning, ‘Procedural Rationality: Giving Teeth to the Proportionality Analysis', European Constitutional Law Review 9 (2013): 238.
107 See Open Society Foundations, The Global Principles on National Security and the Right to Information 2013 (Tshwane Principles), http://www.opensocietyfoundations.org/sites/default/files/global-principles-national-security-10232013.pdf . Principle 40 argues that ‘the “reasonably believed” test is a mixed objective-subjective test. The person must actually have held the belief (subjectively), and it must have been reasonable for him or her to have done so (objectively) … [I]t is ultimately for an independent court or tribunal to determine whether this test has been satisfied so as to qualify the disclosure for protection'.
108 Transparency international, ‘Whistleblower Laws', 7.
109 David Lewis, ‘Enterprise and Regulatory Reform – Whistleblowing Aspects', Employment Law Bulletin 110 (2012): 5.
110 See note 74 above.
111 Banisar, ‘Whistleblowing’, 2.
112 Ibid., 23.
113 Ibid. For a specific list of countries and an exhaustive state-by-state analysis see David Banisar, Freedom of Information around the World: A Global Survey of Access to Government Information Laws (Privacy International, 2006), http://www.freedominfo.org/documents/global_survey2006.pdf; and Banisar ‘Whistleblowing’.
114 Latimer and Brown, ‘Whistleblower Laws', 785.
115 However, the UN Rapporteur on Freedom of Opinion and Expression has attempted to define certain areas where disclosures ought to enjoy free speech protection. The 2000 report stated that: ‘Individuals should be protected … for releasing information on wrongdoing, viz. the commission of a criminal offence or dishonesty, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty or serious failures in the administration of a public body'. UN Economic and Social Council Commission on Human Rights 56th Session. ‘Civil and Political Rights Including the Question of Freedom of Expression’ E/CN.4/2000/63 18 January 2000 [44].
116 Banisar, ‘Whistleblowing’, 25.
117 South African Protected Disclosures Act 2000, 4, http://www.justice.gov.za/legislation/notices/2011/20110831_gg34572_n702-disclosure-guidelines.pdf.
118 Banisar, ‘Whistleblowing’, 25.
119 Elletta Sangrey Callahan,Terry Morehead Dworkin and David Lewis, ‘Australia, U.K., and U.S. Approaches to Disclosure in the Public Interest’, Virginia Journal of International Law 44 (2003–2004): 886.
120 5 U.S.C. § 2302(b)(8)(A)(ii) (2003).
121 Callahan, Dworkin and Lewis , ‘Australia, U.K., and U.S. Approaches to Disclosure’, 886 and 42 U.S.C. § 300j-9(i) (2002).
122 Banisar, ‘Whistleblowing’, 25.
123 Transparency International, ‘Whistleblower Laws', 10.
124 Tshwane Principles, Principle 37.
125 Resolution 1954 (2013) at [9.5.].
126 Ibid.
127 Chelsea Manning's disclosure of a video of US crew killing Iraqi civilians would fall under the protected category of a violation of international humanitarian law, Snowden's disclosures would fall under mass surveillance, while National Security Agency (NSA) employee Thomas Drake's revelations of waste of funds in the NSA would fall under waste of resources.
128 Tshwane Principles, Principle 10.
129 Ibid., at D1.
130 Ibid.
131 An example of this would be David Kelly, an employee of the Defence Intelligence Staff in the UK, who leaked information to the press that refuted the official government line on the rationale behind the war in Iraq. After the disclosure Kelly committed suicide and an inquiry was established over the circumstances of his death. Lord Hutton, ‘Report of the Inquiry into the Circumstances Surrounding the Death of Dr David Kelly C.M.G.’, HC 247 2003/4.
132 Tshwane Principles, Principle 37.
133 Benjamin Buckland and Aidan Wills, ‘Whistleblowing in the Security Sector', http://whistlenetwork.files.wordpress.com/2014/01/bucklandwills-chapter.pdf.
134 Venice Commission Report, ‘Oversight of Security Services', 18.
135 UK Prime Minister Report to Parliament, ‘A Strong Britain in an Age of Uncertainty: The National Security Strategy’, October 2010 (Cm7953), 24, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/61936/national-security-strategy.pdf.
136 French Labour Code Article L 1161-1 found in Thad Guyer and Nikolas Peterson, ‘The Current State of Whistleblower Law in Europe: A Report by the Government Accountability Project', 2013 American Bar Association Section of Labor & Employment Law International Labor & Employment Law Committee, 15, http://www.whistleblower.org/storage/documents/TheCurrentStateofWhistleblowerLawinEurope.pdf.
137 Mary-Rose Papandrea, ‘The Publication of National Security Information in the Digital Age’, Journal of National Security Law and Policy 5 (2011–2012): 199. See also, Yochai Benkler, ‘A Free Irresponsible Press: Wikileaks and the Battle over the Soul of the Networked Fourth Estate’, Harvard Civil Rights – Civil Liberties Law Review 46 (2011): 311.
138 Brian Martin, Justice Ignited: The Dynamics of Backfire (Lanham, MD: Rowman & Littlefield, 2007), 67.