Focus: Chilling Effects: The Jurisprudence of the European Court of Human Rights

Abstract

Article 10 of the European Convention on Human Rights (ECHR) guarantees the right to freedom of expression and information to everyone in all fortyseven member states of the Council of Europe. Article 10 was originally written with regard to the relationship between citizens and public authorities, as it sets out the right to freedom of expression ‘without interference by public authority’. Since the European Court of Human Rights (ECtHR) made clear ‘that Article 10 applies also to the workplace’, the right to freedom of expression of employees is no longer disputed1. Meanwhile the ECtHR has made it clear that Article 10 ECHR can also be applied in private legal relationships and it has repeatedly assessed interferences by private persons in the light of Article 10 § 2 ECHR2. Case law of the ECtHR shows that Article 10 applies both to employees of public authorities, and to employees in the private sector, as well as labour organisations and trade union officials in their relation to the employer or the management. The jurisprudence of the ECtHR shows that in many countries in Europe employers have indeed interfered with the right to freedom of expression of their employees, eventually organised or acting as trade unions’ officials. Such interference can take place in different forms, such as a refusal of promotion, disciplinary measures, non-renewal or termination of an employment contract or an immediate dismissal for serious misconduct. For a diversity of reasons employers have interfered with employees’ or trade unions’ freedom of expression, for instance because some expressions or publications were considered defamatory, insulting or dishonestly criticising the employer, the management or other employees. The crucial issue is where the limits and restrictions of the employee’s and trade unions’ right to freedom of expression lie, as the exercise of this freedom carries with it ‘duties and responsibilities’ (Article 10 § 2 ECHR). According to the standards of the ECHR, the decisive question concerns whether an interference by the employer with the employee’s or trade union’s right to freedom of expression is ‘necessary in a democratic society’. In other words: when is there ‘a pressing social need’ justifying such interference? The ECtHR has repeatedly referred to the connection between the (individual) freedom of expression and the collective exercise thereof through protests, pickets, demonstrations or associations. When it concerns freedom of expression of employees this right will be enhanced even more when opinions are expressed or statements are made in the context of trade union activities. The ECtHR in some of its judgments however seems not to give pertinent or sufficient weight to this dimension of the right to freedom of expression as part of trade union activities. Freedom of expression: a means of freedom of association In Nilsen and Johnson v. Norway (25 November 1999), the Court recognised the importance of the right of freedom of expression for members of a trade union, in connection with the rights guaranteed under Article 11 of the Convention (right of peaceful assembly and of association). The Court stated that ‘a particular feature of the present case is that the applicants were sanctioned in respect of statements they had made as representatives of police associations in response to certain reports publicising allegations of police misconduct’ and it took into account that ‘the statements in question have been made by elected representatives of professional associations in response to allegations calling into question the practices and integrity of the profession’. The ECtHR also emphasised ‘that the right to freedom of expression under Article 10 is one of the principal means of securing effective enjoyment of the right to freedom of assembly and association as enshrined in Article 11’. This approach was followed in Vellutini and Michel v. France (6 October 2011), which concerned trade unionists who had distributed leaflets with insulting and defamatory content, criticising the mayor of a municipality who had an ongoing dispute with a union member over disciplinary sanctions3. The mayor brought proceedings against the trade unionists before the criminal court, which found them guilty of ‘public defamation against a citizen holding public office’ and imposed fines, after ruling their evidence inadmissible. In addition, they were ordered to pay euro 2500 each in damages to the...