European Court of Human Rights rules on the right to freedom of expression in the context of employment

Palomo Sanchez v Spain [2011] ECHR 1319 (12 September 2011)

Summary

In this case, the Grand Chamber of the European Court of Human Rights considered whether the dismissal of employees for publishing offensive material in a trade union newsletter contravened the rights to freedom of expression and freedom of association under articles 10 and 11 of the European Convention of Human Rights. The majority of the Grand Chamber concluded that the dismissals were reasonable and that no contravention of articles 10 and 11 had occurred.

Facts

The applicants were delivery workers employed in Spain by an industrial bakery company. In a series of proceedings in employment tribunals, the applicants had been successful in establishing their special salaried-worker status, entitling them to be covered by a social security regime. The applicants were later dismissed from the employment of the company following the publication of a trade union newsletter that commented on these proceedings.

This newsletter featured, on its cover, a cartoon that depicted the company’s human resources manager “sitting behind a desk under which a person on all fours could be seen from behind”, implying that the manager was “receiving sexual gratification in return for favours granted to certain workers”. Standing to one side of the manager, and apparently “waiting to take their turn to satisfy the manager”, were two representatives of a committee of the company’s non-salaried delivery workers, both of whom had testified on behalf of the company in the recent employment tribunal proceedings. The newsletter also contained two articles accusing the representatives of “selling the workers in the court”, which were expressed in language that was characterised by the Grand Chamber as “crude and vulgar”.

The Employment Tribunal rejected the applicants’ challenge to their dismissal, finding that the newsletter content was “offensive and exceeded the limits of freedom of expression and information, impugning the honour and dignity of the human resources manager and of [the two representatives] and damaging the image of the company”. Subsequent appeals to the High Court of Justice of Catalonia, the Supreme Court of Spain and the Constitutional Court of Spain were all unsuccessful, as was the proceeding before a Chamber of the European Court of Human Rights.

Decision

The question before the Grand Chamber was whether the Spanish courts had adequately secured the applicants’ rights to freedom of expression and freedom of association in dismissing their claims. By a majority of 12 votes to 5, the Grand Chamber found that there had not been a violation of these rights.

The majority judgment dealt only briefly with the right of association under article 11 of the Convention, as they found that the applicants had not been dismissed for being members of a trade union, but rather for the publication of the newsletter. The majority did, however, state that, given the context of the newsletter’s publication, the right to freedom of expression under article 10 of the Convention was to be interpreted in light of the right to freedom of association.

In their consideration of article 10, the majority noted that the right of freedom expression could extend not only to the substantive ideas expressed in the material but also to the form of expression, even where that expression offends, shocks or disturbs. Nonetheless, the majority held that the right to freedom of expression is not unlimited and that it is legitimate for it to be restricted in order to protect the reputation of others.

Addressing the facts before them, the majority concluded that the accusations contained in the newsletter were expressed in vexatious and injurious terms. In fact, the majority noted that the contents of the cartoon “were intended more as an attack on colleagues for testifying before the courts than as a means of promoting trade union action vis-a-vis the employer.” Ultimately, the majority concluded that the Spanish courts’ findings that “the applicants had overstepped the limits of admissible criticism in labour relations” were not unfounded or unreasonable.

In the course of their judgment, the majority made a number of observations about the limitations imposed on the right to freedom of expression by the employment relationship: first, the necessity of mutual trust in an employment relationship might restrict the scope of what falls within the bounds of legitimate freedom of expression; secondly, the “disruptive effects” of attacking individuals with offensive language in a professional environment justifies severe sanctions; and finally, the ambit of acceptable criticism of private individuals is narrower than that of politicians or public servants.

The dissenting judges criticised the majority’s decision on a number of grounds, including that: the majority had failed to properly take into account the context of the industrial dispute in which the newsletter was published; the cartoon, “whilst being vulgar and tasteless in nature”, was satirical; the contents of the newsletter criticised the manager’s and representatives’ professional conduct and not their private lives; and the dismissal of the employees was a disproportionate response in light of the current employment crisis affecting Spain.

Relevance to the Victorian Charter

Section 15(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) recognises a right to freedom of expression similar to that recognised by the Convention. Like article 10 of the Convention, section 15(3)(a) explicitly notes that this right may be restricted in a manner reasonably necessary ‘to respect the rights and reputation of other persons’. Section 7(2) also allows the rights recognised under the Charter to be subject to “reasonable limits”. These reasonable limits could include limitations arising as a result of the fiduciary relationship between employees and employers.

Although it is unclear where Australian courts will strike the balance between freedom of expression and the obligations owed by employees to their employers, this case indicates that any protection afforded by the Charter in relation to freedom of expression may not extend to situations where the expression is offensive, gratuitous or in any other way inconsistent with employees’ obligations to their employer.

The decision can be found online at: http://www.bailii.org/eu/cases/ECHR/2011/1319.html.

Luke Pallaras is a Law Graduate with the Mallesons Stephen Jaques Human Rights Law Group