On 27 August 2024, the European Court of Human Rights (ECtHR) issued two pivotal rulings on the intersection of freedom of expression and public interest. Hrachya Harutyunyan v Armenia strengthened whistle-blower protections, emphasising their role in combating corruption and other forms of wrongdoing. Bielau v Austria clarified the limits of free speech in the medical field, stressing the need to uphold scientific consensus, particularly during global health crises. Building on a recent post, I argue that these ECtHR decisions reinforce the delicate balance courts must strike between safeguarding individual rights and protecting societal welfare, especially where misinformation can have devastating consequences.

Whistle-blowers and Free Speech

In Hrachya Harutyunyan v Armenia, the applicant, upon leaving his position at the Electric Networks of Armenia, sent a confidential report to management alleging corruption by a colleague. The report, intended to remain confidential, was leaked to the accused colleague, who successfully sued Harutyunyan for defamation. This led to a significant financial penalty for Harutyunyan, culminating in the seizure of his property. Harutyunyan appealed to the ECtHR, arguing that the Armenian courts failed to adequately consider his right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR), especially in the context of whistleblowing.

The ECtHR found in favour of Harutyunyan, ruling that the Armenian courts violated Article 10 of the ECHR [64]. Importantly, the ECtHR clarified that the protection offered to whistle-blowers should not end when their employment relationship terminates. The right to freedom of expression must extend to former employees, particularly when they are acting in the public interest [55]. Regarding the authenticity of information, the Court acknowledged that, under specific conditions, whistle-blower disclosures may be protected even if they are later proven false or unverifiable. Referencing Halet v Luxembourg, it concluded that whistle-blowers must demonstrate that they made a diligent effort to verify the information’s accuracy and reliability [57].

Anti-Vax Rhetoric on Trial

In Bielau v Austria, the applicant, an Austrian general practitioner with interests in holistic medicine and homeopathy, published anti-vaccination material on his website. His posts denied the existence of pathogenic viruses and claimed that vaccinations were ineffective in preventing diseases. In response, the Austrian Medical Association (Österreichische Ärztekammer) initiated disciplinary action for violating professional standards. Bielau argued that this disciplinary action violated his right to freedom of expression under Article 10 of the ECHR.

In contrast to the Harutyunyan case, the ECtHR upheld Austria’s disciplinary measures, ruling that the state’s actions were necessary to protect public health [46]. The Court observed that the disseminated information was one-sided, and contradicted established medical science, as confirmed by two expert reports [42]. Moreover, the Court emphasised the extensive potential impact of the applicant’s statements, which were easily accessible to the public, particularly laypersons, given their connection to his medical practice [43].

Why these rulings matter

The cases of Harutyunyan and Bielau, while grounded in the traditional balancing of freedom of expression and public interests, introduce critical nuances that contribute to the evolution of the ECtHR jurisprudence. In Harutyunyan, the Court expanded the scope of whistle-blower protections beyond employment termination. It invoked international standards, including the Committee of Ministers’ Recommendation CM/Rec (2014)7 and Directive 2019/1937/EU, both of which advocate for the extension of protective measures to former employees [46]. The ECtHR emphasised that individuals, by virtue of their employment experiences, are uniquely positioned to report misconduct, asserting that protections must endure even after the termination of the employment relationship [46]. This recognition marks a significant advancement in ECtHR case law, affirming that whistle-blower protections under Article 10 of the ECHR persist beyond employment status.

The ruling in Bielau is noteworthy because, building upon the right to dissent, the ECtHR reaffirmed that practicing doctors ‘have the right to participate in debates on public health issues, including expressing critical and minority opinions. The exercise of that right is, however, not without limits, particularly when connected to the exercise of their profession’ [44]. The ruling highlights the imperative of imposing restrictions in cases of medical misinformation, particularly as the world grapples with an escalating wave of public health crises [33-36]. As noted in a previous post, Shiffrin’s thinker-based approach highlights that insincere speech and falsehoods fundamentally undermine the essential purpose of free speech — promoting genuine understanding and informed decision-making — a perspective that is echoed in Bielau [44]. Ultimately, these two cases reflect the ECtHR’s responsiveness to modern legal and societal challenges, illustrating how its jurisprudence on freedom of expression is evolving to meet the demands of a rapidly changing world.

Read more:

• Is Regulating Disinformation at Odds with Free Speech? An Analysis of India’s Approach.
• The ECtHR in Podchasov v. Russia – Preserving Encryption And Denying Backdoors.
• Association Accept and Others v. Romania: The European Court of Human Rights Takes a Fresh Look at Homophobic Speech and Biased Criminal-Law Enforcement.
• Freedom of Expression and Information in the Coronavirus Era.