Blogging on Professional Matters After Work. Strasbourg Strikes a Balance in Herbai v. Hungary

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Workers are entitled to freedom of expression outside work. But how is that freedom affected by their work contracts when they give their opinions on work-related matters? Is a human resources analyst protected by the Convention when he or she shares personal opinions on professional matters in a blog outside work? If the employer decides to dismiss the worker on the grounds that commercial information has been revealed, is that decision subject in any way to freedom of expression rules as set in the Convention?

That is the question raised in Herbai v. Hungary, a case in which the European Court of Human Rights was confronted with a dismissal by a bank of a human resources analyst who had been publishing on the internet his opinion on several issues related to human resources. The employee never revealed the fact that he worked for the bank, nor did he make any mention to decisions being made at work. However, the bank considered that general comments on human resources strategy, particularly on the issue of remunerations, were sufficiently severe to entail a breach a contract.

The Hungarian Supreme Court ruled on the case by declaring that a worker enjoys no freedom of expression in the workplace, or in work-related matters, as long as he is bound by contract, and dismissed the worker’s claims.

In a judgment rendered last week, the European Court of Human Rights ruled in favour of the applicant. In its judgment, the Court reversed the Kúria’s view that a worker enjoys no freedom of expression on the matters covered by contract, and stated that the freedom can be exercised in the workplace, but subject to certain conditions that national courts must take into consideration. These conditions include the following elements: the nature of the speech in question, the motives of the author, the damage, if any, caused by the speech to the employer, and the severity of the sanction imposed.

The Court does not go into the application of these criteria in the specific case, but simply points out that no consideration whatsoever was made to any of these circumstances by the domestic court. Thus, the Kúria breached Article 10 of the Convention by refusing to take into account the circumstances that could have amounted to a violation of the worker’s freedom of expression.

The case is a revealing example of how claims between private parties, particularly in the workplace, are covered by the Convention as a result of the positive obligations doctrine. These horizontal conflicts belong to the private sphere in which contracts play a relevant role, but national courts, as part of the State, are under a duty to rule on them taking into account the Convention. In this particular case, the Kúria ruled in light of the terms provided in the contract, but Strasbourg considered that such a threshold was not enough.

Also, in an environment in which individuals expressing their views more and more frequently in public through the use of social media and blogs, the scope of Article 10 of the Convention, and the limits that employers may impose on workers outside work, is a subject of growing relevance. Although the Court has not settled the exact way in which the balancing test takes place, it has sent a first and relevant message: national courts cannot rely on the terms of a contract to waive freedom of expression considerations, thus turning Article 10 of the Convention into a relevant benchmark when ruling on labour disputes.

About the author

Daniel Sarmiento

Daniel Sarmiento is Professor of EU Law at University University Complutense of Madrid and Editor in Chief of The EU Law Live Blog.

By Daniel Sarmiento

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