Key criteria for judicial protection of whistleblowers: public interest, proportionality and good faith

The article is devoted to a comprehensive analysis of the key criteria for judicial protection of whistleblowers, which have been formed in modern European legal practice and have become the foundation for assessing the legality of their actions. The study is based on three basic elements: public interest, good faith and proportionality, which form the substantive and methodological basis of the judicial approach to whistleblower activity. The need for such an analytical study is due to the growing role of whistleblowers in ensuring the transparency of public administration, combating corruption and identifying wrongdoing in the private sector. The study is based on the practice of the European Court of Human Rights and the courts of the United Kingdom, as well as on the provisions of Directives (EU) 2019/1937 and 2016/943. The peculiarities of the legal understanding of public interest as a key criterion that determines whether a whistleblower’s report falls under the requirements of protection are revealed. It is emphasized that this category does not have a universal legislative definition: its content is formed in judicial practice depending on the circumstances of a specific case. Currently, judicial practice has developed a number of assessment guidelines that allow us to distinguish information of a private nature from that related to the proper functioning of institutions, the protection of public welfare or the observance of the law. At the same time, the absence of a legislative definition of the concept of public interest is not a drawback, but on the contrary, it ensures the adaptability of law enforcement, allowing us to take into account the specifics of each case. In this scientific study, the whistleblower’s good faith criterion is considered as a multidimensional element that encompasses the procedural correctness of actions, the validity of the belief in the truthfulness of the message, and the absence of personal gain. The proposed approach transforms good faith from a purely moral category to a legal standard of proper conduct. In particular, the differences between two different tests formulated in the practice of national courts of the United Kingdom and the European Court of Human Rights are analyzed, in particular in the case of Chesterton Global Ltd v. Nurmohamed and in the case of Guja v. Moldova. These are, respectively, the pragmatic Chesterton test and the value-oriented Guja test, within which the whistleblower’s good faith encompasses procedural, substantive, and motivational dimensions. A specific type of good faith for British law is separately highlighted – the so-called compensatory good faith. The third element that serves as a tool for ensuring the balance between the benefit of disclosure and potential harm to the interests of the employer or state institution is proportionality. The role of proportionality as a mechanism for ensuring the balance between the rights of the whistleblower and the interests of the employer, in particular in the context of the protection of confidential information, is substantiated. It is proven that the combination of the above criteria forms a generalized test of the legality of whistleblower actions. It is concluded that the modern European model of whistleblower protection is based on a combination of legal norms and a value-based approach aimed at ensuring transparency, accountability and protection of democratic processes.