Research centre violated two of its researcher's freedom of speech
In the view of Ombudsman Petri Jääskeläinen, VTT, the Technical Research Centre of Finland has violated the freedom of speech of two of its researchers and acted contrary to the European Human Rights Convention and the Constitution of Finland.
One of the researchers had received a written warning after appearing as an expert before the Eduskunta's Commerce Committee when it was deliberating the construction of new nuclear power stations. The other would have liked to publish an opinion piece in a newspaper on the subject of peat production, but VTT had not considered this advisable.
It was on the basis of a public discussion last year that the Ombudsman decided on his own initiative to take the matter under investigation. In his decision, he assessed, in the light of the Constitution and case law relating to the European Human Rights Convention and the European Court of Human Rights, whether there had been a basis in law for such interference with freedom of speech and whether it had been acceptable and unavoidable.
The Ombudsman gave VTT a reprimand for the written warning. In addition, he asked it to consider how the violation of freedom of speech could be redressed and recompense made to the researcher. VTT was instructed to inform him, by 31.1.2012, of the measures it had taken in the matter.
In the Ombudsman’s assessment, influencing publication of the other researcher’s article was a lesser interference with freedom of speech, for which reason he was content to express his opinion concerning it.
Assessment was not sufficient
In his decision, Ombudsman Jääskeläinen expressed criticism of VTT for not having sufficiently assessed the relation between an employee's freedom of speech and duty of loyalty. Attention should have been paid to, inter alia, the fact that being formally heard by a parliamentary committee has a special character, that the matter being deliberated was societally significant and that the researcher was appearing as a private person and his motives were not in question.
In addition, VTT should have taken note of the fact that there was no question of secrecy or a prohibition on competition being breached, whether the activity caused VTT harm and further that the VTT guidelines concerning the matter were open to interpretation.
VTT had not demonstrated that the intervention in freedom of speech had been proportionate, and unavoidable in a democratic society.
In the Ombudsman's view, a fairly great distance had been kept from a fair balance between the employee's freedom of speech and VTT’s own interests.
Freedom of speech is a right that belongs also to employees of a public corporation
The Ombudsman points out that freedom of speech is a right that belongs also to public servants and persons working under employment contracts for state agencies.
Researchers with VTT additionally have constitutionally guaranteed freedom of science and research. For this reason, their freedom of speech can be regarded as being in a certain way more special than the freedom of speech that an ordinary public servant or employee enjoys.
The Ombudsman sees confluences between a researcher’s freedom of speech and especially the freedom of speech that journalists enjoy, and which has been given a specially protected status in the case history of the European Court of Human Rights because of the task that the press performs in society. Correspondingly, the role of researchers naturally includes participating in the social discourse.
Severe consequences for appearing before a committee
The researcher had appeared before the committee as a private person, not as a representative of VTT.
For this reason, he had received a written warning from VTT, according to which that kind of conduct can lead to termination of the employment relationship. The reason presented for the warning was that under the research centre's employment contract and guidelines, its employees may not issue private expert statements on matters within VTT’s sector of activities without the employer’s permission.
The Ombudsman considers the written warning a severe consequence, which reveals that the employer regarded the appearance before the committee as a very serious breach of the employment contract. It was severe also because it was not possible for the employee to have it referred to a court for examination.
Thus the warning was conducive to also more generally influencing the degree to which employees dare to exercise their right of free speech.
Committee hearings a part of democracy
Ombudsman Jääskeläinen points out in his decision that what is involved in committee hearings is significantly supporting the Eduskunta's legislative power and democracy and that an invitation from a committee must not be declined other than for an especially compelling reason.
The clear will of the Eduskunta had been to hear, in addition to the official representatives of VTT, also one of its individual, named employees.
In the view of the Ombudsman, VTT has by issuing the warning demonstrated a thoroughly questionable attitude to the express will of the Eduskunta to hear the views of a person. He cannot consider it appropriate that being heard would be prevented because the employer invoked the employee's duty of loyalty.
The Ombudsman also points out that the committee heard the researcher when it was deliberating a matter of great societal importance, namely the construction of nuclear power stations. According to the case law of the European Court of Human Rights, Article 10 of the Human Rights Convention provides hardly any possibility of restricting discussion of important societal questions. The threshold for interfering with freedom speech then becomes very high.
"It is difficult to see how limitation of participation in this kind of idiscourse could be unavoidable in a democratic society," says Ombudsman Jääskeläinen.
Independent research must be able to bear critical evaluation
As the Ombudsman understands it, VTT's starting point has been that its reputation as an independent research establishment could suffer if its employees appeared in public in a way that could be understood as being the agency's official position. However, interests of this kind and the need to protect them can not automatically take precedence over an employee’s freedom of speech.
The Ombudsman believes it is important that the public and VTT's clients can trust that the information it produces is independent and impartial. Looking at the matter from this perspective, one could imagine that VTT’s credibility would suffer if a person associated with it critically evaluated its research results in public.
In the Ombudsman's view, however, the work done by an independent State research centre must be able to bear critical examination, even if the party expressing criticism is one of its own employees. It also accords with the public interest that VTT's public research results are discussed. This can reveal shortcomings and serve the societal discourse and decision making.
The Court of Human Rights has focused attention also on the motives of the person exercising freedom of speech when it has evaluated intervention in this right. For example, pursuit of personal advantage or offensive criticism directed against a person does not justify a particularly high level of protection. No such motives were evident in the VTT case.
Opinion piece in newspaper was intervened in without sufficient grounds
The other case related to calculations conducted by VTT for the bionenergy supplier and developer Vapo concerning the use of peat in production of fuels. A critical debate on the matter had been conducted in the readers' opinions section of a newspaper and a VTT special researcher had wanted to reply in an opinion piece of his own. However, VTT had not considered this advisable and the researcher had not published his article.
VTT did not claim that the researcher had put forward unfounded views in the article. In addition, the text was, in the Ombudsman's view, factual and personal accusations were not made in it.
The Ombudsman takes the view in his decision that VTT has interfered with the researcher's freedom of speech without sufficient grounds.
What VTT actually had to consider was whether it wanted officially to continue the public debate on the matter. However, Ombudsman Jääskeläinen sees it as important that also VTT's individual researchers can respond publicly to criticism directed at the agency's research. According to the law, VTT is a not-for-profit, independent and impartial expert organisation.
VTT's guidelines not precise enough
At the same time, the Ombudsman evaluated the VTT guidelines concerning the provision of expert statements. They can not be regarded as unambiguous enough, especially since the warning given for acting in contravention of the guidelines does not have access to a court for evaluation.
Ombudsman Jääskeläinen takes the view that the guidelines restrict the right of an employee to make private expert statements, but do not specify what is meant by a statement of that kind. "A strong impression is created that the guidelines were drafted first and foremost from the perspective of the employer’s rights and the employee’s responsibilities," he points out.
In the Ombudsman's opinion, the relation between the employee's freedom of speech and his duty of loyalty should be assessed when guidelines of this kind are being drafted, if only because the public authorities must safeguard implementation of fundamental and human rights. Guidelines that can lead to a narrowing of freedom of speech are contrary to the obligation to promote fundamental rights.
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