Freedom of expression is a topic that has featured heavily in the news recently. In the case of Rubins v Latvia [2015] ECHR 2, the European Court of Human Rights considered whether the dismissal of a university professor was in breach of his right to freedom of expression under Article 10 of the European Convention on Human Rights (the Convention).

Background

Article 10 of the Convention provides:

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority…
  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society…

Facts

Mr Rubins was born in 1947 and lives in Riga.  He was a professor and Head of the Department of Dermatological and Venereal Diseases of the Faculty of Medicine of Riga Stradina University (the University), a State university.

On 22 February 2010 the Council of the Faculty of Medicine proposed to merge Mr Rubins’ department and the Department of Infectious Diseases. This meant that Mr Rubins’ role would no longer exist and on 24 February 2010 Mr Rubins was warned about the merger and given the opportunity to agree to some changes to his contract with the University. Mr Rubins was told that if he refused to agree to the changes, his employment would be terminated.

Mr Rubins subsequently sent a series of emails to the Rector of the University (the Rector) concerning the circumstances of the reorganisation and the abolition of his department.  Mr Rubins’ emails criticised the conduct of University managers and the lack of democracy and accountability in the University leadership, made allegations of financial mismanagement, referred to there being an inadequate system of checks and balances in place and proposed amendments to the University’s constitution.

On 20 March 2010 Mr Rubins sent a further email to the Rector, in which he proposed ways of resolving his employment situation and advised that, if his proposals were rejected, he would make his concerns public.  The Rector confirmed that he was not able to agree to Mr Rubins’ proposals.  On 23 March 2010, at a University assembly meeting, Mr Rubins asked for the decision to merge to be annulled but his request was rejected.  Later that day the Latvian national news agency published Mr Rubins’ views about the alleged shortcomings in the management of the University.

The Rector asked an investigative committee and ethics committee to review Mr Rubins’ conduct and on 6 May 2010 Mr Rubins received 10 days’ notice of the termination of his employment. The University was of the view that in sending the email of 20 March 2010 (which made inappropriate demands, including elements of blackmail and undisguised threats) Mr Rubins had committed significant infringements of his employment contract and had behaved in a way that disregarded good morals, both of which are grounds for dismissal under Latvian labour law.

The Latvian courts rejected Mr Rubins’ claims and he applied to the European Court of Human Rights, complaining that his dismissal violated Article 10 of the Convention on the basis that he had been punished for expressing an opinion about problems within the University and for attempting to resolve his employment situation.

European Court of Human Rights decision

A majority of the judges (5:2) in the European Court of Human Rights held that there had been an unjustified breach of Mr Rubins’ right to the freedom of expression.

Mr Rubins’ dismissal did amount to an interference with his right to freedom of expression and so Article 10 was engaged. The crux of the employment dispute was the alleged unethical manner of expression used by Mr Rubins in his email of 20 March 2010 to the Rector.

The interference had a basis in domestic law, which served a legitimate aim.  The provisions of domestic law - according to which employees owe their employer a duty of loyalty, reserve and discretion - were sufficiently clear.  The majority noted that certain manifestations of the right to freedom of expression that may be legitimate in other contexts are not legitimate in that of labour relations.

However, the interference with Mr Rubins’ right was not proportionate to the legitimate aim pursued and was therefore not “necessary in a democratic society”. The University was a State-financed educational establishment and the issues raised by Mr Rubins were therefore of some public interest.  Also of importance was the fact that the truthfulness of the information disclosed had not been challenged by the parties. The Latvian courts had not assessed either point nor had they considered whether any private information damaging to the dignity of Mr Rubins’ colleagues or the University had been disclosed. The majority noted that dismissal was the harshest sanction available and was liable to discourage other employees of the University from raising criticisms. In the circumstances, the interference with Mr Rubins’ right was not proportionate to the legitimate aim pursued. Mr Rubins was awarded €8,000, plus any tax that may be chargeable, in respect of non-pecuniary damage and €2,280 for his costs.

The minority considered that the facts were those of an employment dispute. The minority’s view was that, in so far as any issue of freedom of expression arose, it had been adequately dealt with by the Latvian courts.  Mr Rubins had not been dismissed for expressing his opinions but for misconduct in attempting to blackmail his employer.

Comment

This case follows another recent decision of the European Court of Human Rights in Matuz v Hungary [2014] ECHR 1112, in which the Court held that the dismissal of a Hungarian state television journalist for publishing a book in breach of confidentiality restrictions in his employment contract amounted to an unjustifiable interference with his right to freedom of expression under Article 10 of the Convention.

UK workers who raise similar concerns to Mr Rubins may be protected under the whistleblowing legislation. However, these two recent cases suggest that in circumstances where the whistleblowing legislation does not apply, workers will also be protected if they can show that action taken by their employer is an unjustified interference with their right to freedom of expression under Article 10.

Lastly, the Court reminded us that freedom of expression is one of the essential foundations of a democratic society and one of the basic conditions for its progress. Subject to Article 10(2), it applies not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.