Public interest between whistleblowing and data confidentiality

Jerinić Nebojša (Beogradska akademija poslovnih i umetničkih strukovnih studija, Beograd), nebojsa.jerinic@bpa.edu.rs
Vujičić Vukićević Sofija (Beogradska akademija poslovnih i umetničkih strukovnih studija, Beograd), sofija.vujicic@bpa.edu.rs

This paper aims to examine the relationship between public interest, whistleblowing, and data confidentiality protection through a comparative analysis of European Union (EU) law and the case law of the European Court of Human Rights (ECtHR). The research is based on the thesis that whistleblowing is one of the key mechanisms of democratic control. However, its legal nature is not fully encompassed in the EU normative framework, especially in terms of the substantive concept of public interest. Methodologically, the paper combines a normative analysis of Directive (EU) 2019/1937 and Directive (EU) 2016/943 with a doctrinal analysis of significant ECtHR judgements. The results show that, in the EU, the public interest arises only implicitly, through a violation of EU law, while the ECtHR develops a substantive test that includes the assessment of the public interest, the good faith of the whistleblower, the gravity of the violation discovered, the effectiveness of internal whistleblowing mechanisms, and the existence of a causal link between the whistleblowing and the retaliation. Case law, therefore, functions as a material corrective to the Directive, especially in cases of disclosure of confidential, business, or state secrets. The conclusion of the paper indicates that for the legal system of the Republic of Serbia, which lacks precise criteria for determining the public interest, the jurisprudence of the ECtHR is of crucial importance for the uniform and effective protection of whistleblowers.

Keywords: Whistleblowing, public interest, freedom of expression, confidentiality of data, business secret, state secret, European Court of Human Rights, EU law