Download This PaperProtecting National Security Whistleblowers in the U.S. and in the ECtHR: The Limits of Balancing and the Social Value of Public Disclosures
37 Pages Posted: 8 May 2020 Last revised: 13 Jan 2022
Date Written: April 14, 2020
Abstract
This article discusses the comparative responses from the U.S. and the European Court of Human Rights to the conundrum posed by whistleblowing in national security. Concluding that both systems have focused excessively on the subjective aspect of whistleblowing as a facet of freedom of speech, the article proceeds to propose an innovative, institutional framing of the conflict over public disclosures, building on the transnational precedent that confirms the social value of whistleblowing for democratic self-government and public accountability. Concretely, this means that when state secrecy covers illegal and illegitimate activities of the executive power, then whistleblowers should be entitled to protection against criminal sanctions. Such an approach shifts the criterion of protection from balancing between subjective rights and the public interest, to the legitimacy of the disclosed activity. At the same time, legitimate state secrecy should be protected through sanctions (primarily employment-related and only exceptionally criminal) to leakers.
Keywords: whistleblowing, national security, state secrecy, freedom of speech, comparative law, proportionality
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