Is the right to freedom of speech that absolute that it outweighs the private-law principles and also the employee’s obligation to be loyal to their employer?
What is whistleblowing?
Whistleblowing is the notification of unlawful or unethical conduct to a relevant authority, hotline, or to the media, in an attempt to protect the public interest. Unfortunately, there is no comprehensive whistleblowing legislation in the Czech Republic. All previous efforts to find a solution to this issue have failed; the only exception being in the banking sector.
Although whistleblowers often face harassment and retaliation, the number of cases where whistleblowers cite their “absolute” right to freedom of expression and protection of important social values has increased. However, they inform about the unfair practices of their employers especially private bodies, such as current or potential business partners.
Is the right to freedom of speech truly that absolute and universal that it outweighs the private-law principle of respect for contracts, and therefore also the employee’s obligation to be loyal to his/her employer? In recent years, this question was addressed by the Constitutional Court of the Czech Republic, and its ruling is relatively clear.
Freedom of speech is one of the political rights guaranteed under Article 17 of the Charter of Fundamental Rights and Freedoms1 (the “Charter”). Its primary purpose is to “allow everyone with impunity, to critically express their opinions, for example, on politicians, activities of the state or local government units, […]”2. The application of this right may not be extended without limitation, other than to the aforementioned areas. For these reasons, freedom of speech may not be understood as an absolute and unfettered right.
The right to freedom of speech is also connected with the right to petition, guaranteed under Article 18 of the Charter. This right is based on the principle of the rule of law, ac-cording to which the state and its citizens are not mutually antagonistic, but the state has to serve its citizens, and the citizens have to be loyal to their state. The citizens are then granted the right to participate in public affairs, and to point out any inaccuracies or injustices. In individual cases, the aforementioned constitutional rights, together with the public interest, shall be measured against private law and its principles.
The Labour Code3 stipulates the rights and obligations of all employees and employers, from which only a few exceptional derogations are possible. One of these obligations is the obligation of loyalty, according to which employees are obliged “not to act at variance with the legitimate interests of the employer.” The obligation of loyalty is related to the obligation of confidentiality, according to which employees are required to (i) “comply with legislation relating to the work they perform,” and (ii) “properly manage any assets entrusted to them by the employer, and secure and protect the property of the employer against damage, loss, destruction and abuse“. Employees are thus obliged to protect the employer’s trade secrets and to use them only in the service of their work tasks.
A priori, the private-law principle of respect for contracts, and therefore also the employees’ obligation of loyalty and confidentiality, cannot interfere in public relations and cannot outweigh the interest of society in ensuring that citizens assist in detecting improprieties or injustice. These private and public law principles shall be measured in each individual case, whereas the motivation of the whistleblower will be crucial.
If the whistleblower is pursuing a purely public interest4, he or she will be protected by the constitutionally guaranteed right to freedom of speech and the petition right, which outweighs the private law principles. Under these circumstances, “the legitimate interests of the employer” will not be protected. However, this will only be applicable under the condition that the whistleblower publicly discloses any information, only after exhausting all internal reporting mechanisms, should the employer have any in place. Public disclosure should be the last step and should be directed exclusively to state administration bodies.
If the whistleblower does not limit his or her notification to information directly related to the reported deficiencies, and also provides other facts with the intention to cause dam-age to the employer (whereas this notification will be addressed not only to state authorities, but also to purely private bodies), the whistleblower’s actions will not be granted public protection. In this case, the private interest outweighs the public one, and the whistleblower will be in gross breach of his or her labour law obligations, with all the related consequences.
A whistleblower pursuing a purely public interest will be protected by the constitutionally guaranteed right to freedom of speech and the petition right, which outweighs private law principles. Under these circumstances, “the legitimate interests of the employer” will not be protected. However, this will only be applicable under the condition that the whistleblower publicly discloses any information, only after exhausting all internal reporting mechanisms, should the employer have any in place.