Browsing by Author "Nybergh, Susanne"

The freedom of expression is essential for a democratic society and it is protected in several human rights conventions and in the Constitution of Finland. The freedom extends to work places and employees have a right to the freedom of expression. Furthermore, whistleblowing is strongly connected to the freedom of expression of employees. It is considered as whistleblowing when a person is reporting a misconduct, wrongdoing or illegal activity with a public interest that takes place in the activity of an employer. Whistleblowing contributes to transparency and a fair and effective market and has therefore a public interest. Researches have shown that whistleblowing is the most efficient tool in fighting corruption and other wrongdoings. Yet whistle blowing protection is weak in general in Europe. The purpose of this thesis is to analyse whistleblowing in the private sector in Finland. The freedom of expression of employees can be restricted by the duty of loyalty in the relationship of the employee and the employer. There is a conflict of interest in these situations. On one hand, the employee has a duty to stay loyal to the employer. On the other hand, the employee has a freedom of expression. There is also a public interest in reporting wrongdoings. The scope of this thesis is to analyse the legal situation regarding whistleblowing. Case law of the European Court of Human Rights, the Court of Justice of the European Union and Finnish courts and the balancing of these interests will be analysed. Moreover, protection of trade secrets is a part of the duty of loyalty as there is a prohibition for employees to reveal trade secrets. Trade secrets are valuable assets for companies and the new Trade Secret Directive and the Finnish Trade Secrets Act bring better protection to this kind of information. However, whistleblowing with a public interest is an exception to the protection of trade secrets. There is a risk of disclosing trade secrets when reporting a wrongdoing. In addition, there is a conflict between keeping a trade secret undisclosed and the public interest in getting information about wrongdoing, misconduct and illegal activity. The purpose of this thesis is to analyse the scope of the whistleblowing exception in the Trade Secrets Directive and the Finnish Trade Secrets Act. The main method used in this thesis is the doctrinal method. Because whistleblowing is a relatively new phenomenon in Finland, a comparative method is used to compare whistleblowing protection in Europe to Finland. Especially the whistleblowing legislation and case law in Sweden and the United Kingdom are used to bring a new point of view and a broader context. This thesis is divided into three main areas in order to answer the research questions. Firstly, the purpose of this thesis is to analyse the freedom of expression of employees when they are reporting wrongdoings, misconduct and illegal activity. The use of the word whistleblowing is not established in Finland, which makes it necessary to analyse whistleblowing in general and analyse what legislation there is regarding whistleblowing. The legislation regarding whistleblowing is fragmented and therefore it is hard to get a grip of the phenomenon. The first research question concerns whether there is a need for a general and non-sector specific whistle blower protection legislation in Finland? Secondly, the purpose of this thesis is to analyse the protection of trade secrets as a part of the duty of loyalty and as a restriction to the freedom of expression of employees. The legal situation when it comes to balancing of the freedom of expression and the loyalty will be analysed. Lastly, the legal situation regarding whistleblowing and its connection to the Trade Secrets Directive and the Finnish Trade Secrets Act will be analysed. The definition of trade secret is wide and includes a wide range of information as a trade secret. The second research question is what the scope of the whistleblowing exception in the protection of trade secrets is? The scope is unclear when it comes to what is considered as general public interest and how the burden of proof will be solved in a concrete case. This thesis concludes by analysing the problems arising from the unclear scope of the whistleblowing exception and by presenting a possible solution to enact a general and non-sector specific whistle blower protection legislation in Finland.