Human Rights Court Shields Workers From Speech Retaliation

STRASBOURG, France (CN) – Protections for freedom of speech extend into the workplace, the European Court of Human Rights clarified Tuesday in the case of a bank employee fired for writing online articles about human resources issues.

The European Court of Human Rights building in Strasbourg, France.

“The court reiterates that the enjoyment of the right to freedom of expression should be secured even in the relations between employer and employee,” the seven-judge panel’s ruling states.

Csaba Herbai, a Hungarian national, was working as a human resources manager at a bank in the country’s capital city of Budapest. While he was employed there, he helped start a knowledge-sharing website directed at HR professionals.

Herbai had signed a confidentiality agreement with the unnamed bank in which he agreed “not to publish formally or informally any information relating to the functioning and activities of his employer,” according to court records.

On his HR website, Herbai identified himself as a contributor to the site, including a photo and a biography that mentioned he “worked in the human resources department of a large domestic bank,” though he did not name his employer.

In 2011, the bank fired him on the basis that his website articles violated the confidentiality agreement. Herbai sued in Hungarian court over his dismissal, but the court held that his writings could have jeopardized the bank’s interests.

After taking his case all the way to the Hungarian Supreme Court, which affirmed the lower courts, Herbai filed a complaint with the European Court of Human Rights in 2015.

The Strasbourg-based court was created by the 1953 European Convention on Human Rights and hears cases on political freedom and human rights.

Article 10 of the Convention protects the freedom of expression of European citizens, and the court ruled Tuesday that Herbai’s conduct falls under that protection.

“[Hungarian] courts found that the website conveyed information of a commercial nature, inviting discussion on the business practices of the audience; and, moreover, that the contested articles were addressed to a limited circle of professionals and did not directly concern the public as a whole,” the ruling states. “However, as the Court has previously found, such information cannot be excluded from the scope of Article 10 § 1, which does not apply solely to certain types of information or ideas or forms of expression. In other words, workplace-related free speech does not only protect comments that demonstrably contribute to a debate on a public matter.”

The rights court acknowledged that employers are allowed under Hungarian law to restrict employees’ speech to some degree, but it found that the national courts had not carried out a proper assessment of proportionality.

“The court finds that in the present case the domestic authorities have failed to demonstrate convincingly that the rejection of the applicant’s challenge against his dismissal was based on a fair balance between the applicant’s right to freedom of expression, on the one hand, and his employer’s right to protect its legitimate business interests, on the other hand,” the judges said. “They therefore did not discharge their positive obligations under Article 10 of the Convention.”

Hungary was ordered to pay Herbai damages of 10,000 euros, or about $11,000, and about $5,000 in expenses.

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