Public disclosure of breaches committed by the empleoyer and employee’s freedom of information as whistleblower. Criteria in light of the doctrine of the European Court of Human Rights and the Spanish Constitutional Court

Abstract

Article 28.2 of the Spanish 2/2023 Act on the protection of informants regulates the option of going directly to the press to reveal possible infringements without having previously used the internal and external communication channels contemplated in that Act, with the condition that such disclosure is made in the exercise of freedom of information. The purpose of this paper is to examine what is to be understood by the lawful exercise of such freedom of information by the employee who discloses to the press irregularities committed by her or his employer. It compares the criteria established in this regard both by the European Court of Human Rights and by our Constitutional Court, identifying coincidences and some differences in their respective decisions. These criteria will help us to establish legal parameters in order to determine when is legal the use of public disclosure to the press by an employee, disclosure that may have far-reaching consequences for the affected company. Article 28.2 of the Spanish 2/2023 Act on the protection of informants regulates the option of going directly to the press to reveal possible infringements without having previously used the internal and external communication channels contemplated in that Act, with the condition that such disclosure is made in the exercise of freedom of information. The purpose of this paper is to examine what is to be understood by the lawful exercise of such freedom of information by the employee who discloses to the press irregularities committed by her or his employer. It compares the criteria established in this regard both by the European Court of Human Rights and by our Constitutional Court, identifying coincidences and some differences in their respective decisions. These criteria will help us to establish legal parameters in order to determine when is legal the use of public disclosure to the press by an employee, disclosure that may have far-reaching consequences for the affected company.