Freedom of expression also protects articles about professional matters that are not of public interest
JUDGMENT
Herbai v. Hungary 05.11.2019 (no. 11608/15)
SUMMARY
Web site articles for professionals and freedom of expression. Dismissal of the applicant from his job in the Human Resources Department due to his article on a website dealing with human resources issues.
The Court found in particular that the national courts had not sufficiently balanced the applicant’s rights to freedom of expression and that of the bank’s employer to protect his legitimate business interests.
In particular, the ECtHR disagreed with the findings of the domestic court that articles on matters of interest to a professional audience could not fall under the protection of freedom of expression merely because they were not part of a discussion of general public interest. Violation of freedom of expression.
PROVISION
Article 10
PRINCIPAL FACTS
The applicant, Csaba Herbai, is a Hungarian national who was born in 1974 and lives in Budapest
(Hungary).
In 2011 the applicant was working in the human resources department of a bank, O., and was also
contributing to a website which carried general articles about HR practice.
In February of that year the bank dismissed the applicant on the grounds that his website articles
had breached its confidentiality standards and infringed its financial interests. It also argued that his
position at the bank meant that he was privy to information that could interfere with the bank’s
business interests if published.
Mr Herbai went to court over his dismissal, with the Kúria ultimately ruling on the case in favour of
the bank, observing that his conduct could have presented a risk to his employer’s business
interests.
The applicant lodged a constitutional complaint that the courts had not taken account of his right to
freedom of expression. The Constitutional Court rejected his complaint, finding that the website
content was not protected by freedom of speech because the articles did not cover issues of public
interest.
THE DECISION OF THE COURT
Article 10
The applicant argued that the articles he had written for the website had touched on questions of
professional and public interest as they had related to changes in personal income tax regulations,
albeit in a general manner and not in a way that had had any direct connection with his employer.
The courts had paid no heed to his arguments of an infringement of his right to freedom of speech.
The Government submitted that the writings had not been protected by the right to freedom of
speech as they had not contributed to a debate on a matter of public interest. In any event, the
Constitutional Court had dealt with the matter in line with standards set by the Strasbourg Court.
The Court held that it had to ascertain whether the courts had carried out the necessary balancing of
the applicant’s right to freedom of expression in the context of labour relations against that of the
employer in protecting its commercial interests.
It looked at four elements in the permissible scope of restricting the right to free speech in the
employment relationship at issue: the nature of the speech; the author’s motives; any damage
caused; and the severity of the sanction.
Firstly, the Court did not agree with the Constitutional Court’s finding that the type of speech in
question, addressed to a professional audience, was not the kind that could be protected as it did
not have the characteristics of being part of a discussion on matters of public interest.
Secondly, while comments motivated by personal grievance or antagonism could not enjoy a strong
level of protection, it found that the domestic courts had not seen such motives in the applicant’s
actions. Nor did it question his submission that the issues raised on the website had pertained to a
profession and had been aimed at sharing knowledge.
On the third question, the Court noted that the domestic courts had focussed on the question of
potential damage to the bank’s legitimate business interests and at the possibility of the applicant
divulging confidential business information. However, even given a certain level of deference under
domestic law to employers to determine which conduct could disrupt working relations without
such disruption being clearly manifest, neither the bank nor the Kúria had made any attempt to
show how the speech in question could have adversely affected the bank.
On the final question, it was clear that the applicant had suffered a severe penalty as he had lost his
job without any assessment of a less serious measure.
The Court found that it could not discern any meaningful balancing of the interests in question, the
two senior courts either finding that Mr Herbai’s free speech rights were not engaged or that they
were not relevant. The outcome of the labour dispute had been dictated purely by contractual considerations between the applicant and the bank, voiding his reliance on his right to free speech
of any effect.
The Court concluded that the domestic authorities had failed to demonstrate convincingly that the
rejection of Mr Herbai’s challenge to his dismissal had been based on a fair balancing of each party’s
rights. They had therefore not met their obligation under Article 10 and there had been a violation
of that provision.
Just satisfaction (Article 41)
The Court held that Hungary was to pay the applicant 10,000 euros (EUR) in respect of
non-pecuniary damage and EUR 4,800 in respect of costs and expenses.
