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Written by

Søren Terp Kristophersen
Associate CIPP/E

Was whistleblower exempt from criminal liability?

A public-sector employee who had disclosed confidential information to a journalist about a municipality’s case management was not exempt from criminal liability.

Public-sector employees are bound by professional secrecy with regard to confidential information obtained during the employment and may incur criminal liability if such information is disclosed. However, public-sector employees may, under certain circumstances, be exempt from criminal liability. In these proceedings, the Supreme Court had to decide whether this was the case and whether the new Whistleblower Protection Act played a part in this regard.

The case concerned an occupational therapist employed in a municipality. In her view, the municipality’s handling of cases regarding, for instance, health-related early retirement was illegal or open to criticism, so she wanted to draw public attention to the issue. The occupational therapist therefore took home 89 case files, containing sensitive information about the citizens concerned, and then handed over these files to a journalist.

The district court and the high court held that the occupational therapist had violated the Criminal Code by unduly disclosing confidential information to the journalist and that her actions were not covered by the exception under which disclosure is not subject to criminal liability if the person concerned acts in legitimate pursuit of public interest.

Same exemption from criminal liability as whistleblowers?
The occupational therapist brought the case before the Supreme Court.

In its judgment, the Supreme Court stated that based on the interests of the individual citizen and the interests of general trust between citizens and public authorities it is essential that confidential information is not disclosed. In this particular case, such interests outweighed the need for shedding light on the municipality’s case handling. Consequently, the disclosure was a criminal offence.

During the proceedings in the Supreme Court, the occupational therapist claimed that by adopting the Whistleblower Protection Act Parliament has indicated that it is in the public interest that serious breaches of law and other serious matters come to the attention of the public. According to the occupational therapist, this supported the view that her actions constituted a legitimate pursuit of public interest and were, thus, exempt from criminal liability.

The Supreme Court stated that under the Whistleblower Protection Act whistleblowers cannot be regarded as having set aside a statutory duty of confidentiality if this is necessary in order to report a serious breach of the law. In this regard, the Supreme Court further stated that, according to the preparatory notes to the Act, the assessment under the Criminal Code of whether disclosure constitutes a legitimate pursuit of public interest may be a guiding principle.

Since the occupational therapist was not exempt from criminal liability under the Criminal Code, she was not exempt from criminal liability under the Whistleblower Protection Act either. On this basis, the Supreme Court upheld the judgment of the high court.

Norrbom Vinding notes

  • that the judgment confirms that a high threshold must be overcome in order for disclosure of confidential information to constitute “a legitimate pursuit of public interest” and, thus, to be exempt from criminal liability; and
  • that the judgment further shows that the rule in the Criminal Code under which disclosure of confidential information may be allowed if the disclosure constitutes a legitimate pursuit of public interest can be regarded as a guiding principle in relation to the rule in the new Whistleblower Protection Act on setting aside statutory duties of confidentiality in case of public disclosure.

The content of the above is not, and should not be a substitute for legal advice.