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must be seen only as the last option”.96 In order to evaluate the proportionality of the restriction which might by imposed on freedom of expression, the ECHR takes into account four factors: the public’s interest in the disclosure of the information; the author must not act in defamation or in bad faith and must investigate on the truthfulness of the information revealed; judges must balance the interest of the disclosure and the impact on public authority; the aim of the whistleblower must be taken into account.97 The Court makes sure to protect the interests of the institution, the concerned public authority and not those of the individual in question. Would the ECHR vigilance be the same if a private corporation was put into question? Considering the conditions imposed by the ECHR, outdoor whistleblowing must be only subsidiary. Outdoor whistleblowing could be exercised only when the person in charge, being alerted, wrongfully stays passive. Would the only fact that there is no hierarchy between indoor and outdoor whistleblowing be a violation of the Convention? Would the approach of French case law, clearly more liberal, making outdoor whistleblowing easier, be in contradiction with the European Convention on Human Rights? Nevertheless, the potential contradiction between French and European case law could be nuanced, at least in some fields. Indeed, in the field of public health, the ECHR puts aside the duty of confidentiality to allow a general interest debate dealing “directly with an issue of public health and questioning not only the responsibility of pharmaceutical laboratories in charge of manufacturing and commercializing the vaccine against hepatitis B, but also the State’s representatives in charge of health issues”.98 A similar protection, in the field of environment, was given to a journalist who “wanted to exercise whistleblowing and inform the inhabitants of the department […] that the water was polluted by a corporation”.99 It seems that all the revelations regarding public health or environment are considered as part of public interest and thus, may be (more) easily disclosed. Nevertheless, in those two cases, the authors of the revelations have particular missions. In the first case, it is a lawyer who, during the pre-trial period, comments the information that journalists were about to publish. In the second case, the Court aims at protecting a journalist, which in the Court’s point of view must play the role of a “watch dog”.100 The lawyer, as the journalist, must benefit, due to their functions, from an extended freedom of expression. In other words, the control exercised by the ECHR varies not only by field, but 96
Section 73 of the decision. Sections 73–79. 98 ECHR, Mor v France, 15 December 2011, no. 28198/09; see also L Burgorgue-Larsen, ‘Actualité de la Convention européenne des droits de l’homme (juillet-décembre 2011)’ (2012) AJDA, chron. p. 143; S Lavric (2012), D. obs. p. 667; ibid; T Wickers (2013), D. obs. p. 136; C Porteron (2012), AJ pénal, note p. 337; J-P Marguénaud (2012), RSC, obs. p. 260 ; B Pastre-Belda (2012), JCP G, p. 26. 99 ECHR, Tanasoaica c. Roumanie, 19 June 2012, no. 3490/03. See also FG Trébulle, D. 2012, obs. p. 2557. 100 See esp. section 50 of the decision. 97
