Protecting ‘national security’ whistleblowers in the Council of Europe: an evaluation of three approaches on how to balance national security with freedom of expression

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.