Catalan v Romania (Application No. 13003/04)  ECHR (9 January 2018)
The European Court of Human Rights (ECtHR) ruled that the Romanian Government’s decision to dismiss a member of the public service for the unauthorised disclosure of state documents obtained outside his employment to a tabloid newspaper was a legitimate restriction of freedom of expression under Article 10 of the European Convention of Human Rights. In doing so, the Court emphasised the particular obligation of loyalty held by public servants and the need to prevent disclosure of confidential information and protect the rights of others.
In September 2000, Mr Catalan started work as an advisor at the National Council for the Study of the Securitate (CNSAS), a government body empowered by statute to administer the archives of the Securitate, the former communist secret services in Romania. On 15 September, he signed a confidentiality agreement which prohibited him from disclosing any information he obtained during the course of his employment.
On 22 March 2001, an article written by Mr Catalan’s brother entitled “In his youth, T. [the patriarch of the Romanian Orthodox Church at the time] was probably gay” was published in national tabloid Libertatea, with the heading at the top of the page, “The archives of the Securitate accuse the head of the Orthodox church of ‘unnatural practices’ and of collaboration with the secret state police”. The article produced two unpublished documents from the Securitate archives, alleging that T. was a member of the antisemitic fascist movement Legion, that he participated in the burning of a synagogue and that he was gay. The article identified Mr Catalan as the source for providing the two documents in his capacity as a historian, studying the archives of the Romanian Intelligence Service.
Mr Catalan was subsequently brought before the Disciplinary Committee of CNSAS. During the hearing, the President indicated that Mr Catalan had breached Art 45(g) of CNSAS’s internal guidelines, which enabled disciplinary action for acts “undermining the prestige or authority of the institution”. Mr Catalan said he had not provided the documents in his capacity as a public official, and that, as he obtained the documents before working at CNSAS, he had not breached his confidentiality agreement.
On 23 March 2001, a majority of the Disciplinary Committee decided to dismiss Mr Catalan on the grounds that he had undermined the prestige and authority of CNSAS. Mr Catalan appealed this decision before the Bucharest Court of Appeal which found Mr Catalan had violated the internal regulations of CNSAS and that Mr Catalan’s freedom of expression was not breached due to his obligations as a public servant. The further appeal to the Supreme Court of Justice was similarly dismissed.
The ECtHR ruled that Mr Catalan’s dismissal did not constitute a breach of freedom of expression under article 10 of the European Convention on Human Rights. In making this decision, the Court balanced Mr Catalan’s right to freedom of expression with the protection of the reputation and rights of others, namely CNSAS, and the particular duty of loyalty that public servants owe the State, taking into account the nature of the tabloid article and the role of CNSAS itself.
Did the law have legitimate aims?
The Court found that preventing disclosure of confidential information and protecting the rights of others under article 10 (2) of the Convention were legitimate aims. Though it was not disputed that Mr Catalan obtained the documents in question before commencing his employment at CNSAS, the Court considered that the information disclosed still fell under the meaning of “information received in confidence” as information concerning potential collaborators with the Securitate was within the purview of CNSAS. Moreover, members of the public service have an obligation of loyalty and to show restraint in public communications as they may appear to be acting under the authority of public institutions.
Was the measure necessary in a democratic society?
The Court acknowledged that public servants, along with other members of the professional sphere, are still protected by article 10 of the Convention. However, the Court also noted that employees are bound by a duty of loyalty to their employer. This applies particularly to public servants, due to the public function of their work.
The Court acknowledged that the information in the documents was of great interest to the public. However, this conflicted with the public interest of the CNSAS fulfilling its statutory role of working to document and inform the public on activities of the Securitate. Notwithstanding that the documents were received prior to his employment, the Court held that due to Mr Catalan’s position at CNSAS the public may reasonably infer that his statements were made on the Council’s behalf. Additionally, the way in which Mr Catalan presented the information did not take into account the sensitive nature of the allegations made. Instead of the CNSAS being able to study the matter and give a comprehensive statement to the public, without proper prior verification, Mr Catalan released a select few documents to a sensationalist tabloid newspaper presented as a factual findings and seemingly with the authority of the CNSAS. This risked manipulation of public opinion on the matter.
Further, the Court found that Mr Catalan should have been aware of the impact of the article on the reputation of the CNSAS, particularly given his previous public comment on T.’s alleged collaboration with the Securitate. The Court therefore ruled that Mr Catalan’s dismissal was necessary in order to protect the rights and reputation of CNSAS as a means of distancing itself from Mr Catalan’s disclosure and maintain public confidence. Accordingly there had been no violation of article 10.
The finding that Mr Catalan, a public servant, could be dismissed for disclosing information lawfully obtained before his employment and not covered by his confidentiality agreement appears, on its face, to present broad powers for States to impose limitations on the freedom of expression of public servants and prevent public interest disclosures. However, the Court stressed the exceptional facts in this case. In particular, the Court examined the role of CNSAS as a government body whose legislative purpose was to evaluate and disclose this information in a formal manner. In this case, the CNSAS was already investigating the status of religious leaders in relation to the Securitate before Mr Catalan’s disclosure of the documents.
Further, the Court noted that this case did not involve the disclosure of unlawful conduct by the employer, but instead involved information concerning a third party. As such, they distinguished the facts from previous whistleblowing ECtHR cases such as Guja v Moldova  ECtHR Application no.14277/04 (12 February 2008), where the Court found in favour of the applicant who had been dismissed for releasing letters implicating State corruption to the public.
Catalan demonstrates the use of disciplinary measures to address unauthorised disclosure of sensitive information by a public servant in conflict with any loyalty owed to an employer. This notion of loyalty of public servants and use of administrative measures as disciplinary action as an alternative to criminal sanction aligns with recommendations by the Australian Law Reform Commission’s report in 2009 on reform to secrecy laws. The special responsibility owed by public servants is reflected in the recent National Security Legislation Amendment (Espionage and Interference) Act 2018 (Cth). As originally introduced, the law did not distinguish between “insiders” (Commonwealth officers) and “outsiders” (all other persons). However, during the parliamentary scrutiny process the Attorney-General’s Department proposed amendments that created separate offences for insiders and outsiders, with more serious penalties for insiders. These amendments were accepted by the Parliament.
However, concerns remain about the law’s compatibility with freedom of expression. Unlike the CNSAS regulations in Catalan, the law places large criminal penalties on current and former public servants who disclose “inherently harmful” information. Though the law does attempt to engage with the right to freedom of expression under the ICCPR by defining “inherently harmful” information the Human Rights Law Centre and others criticised the scope of the Act as too broad, putting potential whistle-blowers within the public service at risk of a prison sentence.
On a global scale, the Trump administration has been criticised for allegations of contractual “gag orders” made on White House staffers to prevent the disclosure of confidential information, while proposed reforms to the United Kingdom Official Secrets Act would penalise the disclosure of information obtainable under the local Freedom of Information Act.
The full judgment (in French) is available here.
Anita Moser is a student at the Australian National University College of Law.