Journalist fairly dismissed for revealing source of information

In September 1999, the Swedish Labour Court ruled that it was fair for a newspaper company to dismiss summarily a journalist who forwarded a copy of a fax message sent to the newspaper to the employer of the person who sent it, thus infringing rules on professional secrecy.

An employer was entitled to dismiss summarily a newspaper journalist who sent on a copy of a fax message, addressed to the letters-to-the-editor column, to the employer of the man who signed and sent the message, according to the Labour Court's recent ruling in the labour law part of a case in question. The case was initially tried in a district court and then in a court of civil and criminal appeal, when the journalist was prosecuted for breaching the Swedish Act on Press Freedom (Tryckfrihetsförordningen, TF) and its rules on anonymity for a person giving information to the press, whereby journalists are obliged to observe professional secrecy. The female journalist, employed by a provincial newspaper, claimed in court that the fax message was one of several "letters" with sexually-harassing contents, signed by a single sender. After the district court found against the journalist, the court of appeal (Svea Hovrätt) reduced the severity of the lower court's judgment, finding that the journalist was guilty of an offence against professional secrecy, but only through carelessness and not through intentionally breaking the law, and her penalty was reduced.

It was thereafter up to the Labour Court (Arbetsdomstolen, AD) to decide whether or not the newspaper company had the right, under the Employment Protection Act (anställningsskyddslagen), to dismiss the journalist with immediate effect because of her crime. The judgment (AD dom nr 107/99) was issued on 22 September 1999.

Ethical rules

The Labour Court noted that there had been a violation of not only the Act on Press Freedom but also the rule on professional discretion in the journalists' collective agreement, concluded by the Swedish Publishers' Association (Tidningsutgivarna,TU) and the Swedish Union of Journalists (Svenska Journalistförbundet, SJF). According to this rule, the employees of a newspaper company are obliged to observe discretion about all matters connected with the activity of the company.

The journalist was also found to have broken the professional ethical rules for journalists decided on by the employers, the trade union and the Swedish National Press Club (Publicistklubben, PK), a respected professional organisation, founded in 1874, and not involved in negotiations. According to the judgment, the Court pays special attention to the protection of a person who gives information to a journalist in a newspaper office. The rule of professional secrecy for employees in a newspaper office apply to journalists as well as other staff that come into contact with a message covered by this protection. All the rules referred to are basic knowledge for journalists, the Court states, and of great importance for their work.

The journalist in question had alleged that the fax message was of a sexually-harassing nature, and told the court that several female journalists in the editorial office were offended when the message arrived. However, the Court noted, the journalist concerned took the initiative herself to write a letter to the managing director of the company where the author of the fax worked. The journalist wanted to make sure, she said, that there would be no further messages in the future and thus forwarded a copy of the fax message to the employer.

The Labour Court claimed that the journalist thus showed such a lack of judgment and such gross negligence in her professional duties that, in sending on the fax message, she had set aside her duties as an employee. The Court especially considered that the journalist, through her actions, neglected a very important principle for the newspaper business - the legal right to anonymity for people providing information. The employer was right to have lost confidence in the journalist and it was right to dismiss her. The business of a newspaper company is very much dependent on people giving tip-offs and other information. The public has to be sure that material submitted to the office is confidentially handled. It was obvious to the Court that a careless handling of protected messages might lead to a loss of confidence among readers and prospective informers.

Furthermore, the Court reflected upon the nature of the fax message. The message must be seen in the context of the enormous flood of peculiar messages from the public that normally inundates a newspaper office, the Court stated in its judgment.

Summary dismissal

Section 18 of the Employment Protection Act stipulates the acceptable criterion for a summary dismissal: "an employee may be summarily dismissed where he or she has grossly neglected his or her obligations to the employer," it states. According to the Labour Court, referring to the government's proposal for the Act (prop.1973: 129), the paragraph aims to cover not only intentional actions but also carelessness which is so serious that it should not, within reason, have to be endured in any legal relationship. In summing up its reasons for judging the summary dismissal to be lawful, the Labour Court stated that besides the journalist's very serious lack of judgment and carelessness in her professional work, she also neglected the rules on protection of information, which are very basic for the business. There was also a great risk of the newspaper's reputation being damaged. The journalist thus gravely ignored her obligations to her employer.

Two members of the court were of a different opinion, as recorded in the judgement. Their view was that the crime was committed only through carelessness and that the fax message in question did not fall within the most vital area protected by the Freedom of Press. There was a disturbed atmosphere in the editorial office after the fax message had arrived, and other employees also wanted to stop the sexually-harassing" letters", causing a kind of collective action. These were extenuating circumstances and the journalist should thus not have been dismissed, the two dissenting judges stated.

Commentary

Matters have to go very far before a Swedish employer actually dismisses an employee. However, when there is a crime involved in an employment protection case, then the crime quite often makes the situation more serious for the employee. The Labour Court is by tradition rather severe in judging thefts and crimes of violence in the workplace and often find these crimes serious enough reasons for a summary dismissal. Breaking the rules in the Constitution, of which the Freedom of Press Act forms part, is evidently such a serious crime that it may lead to employees losing their jobs. This applies even if there are circumstances such as, in this case, the understandable anger that may arise when someone allegedly sends sexually-harassing documents aimed at provoking a certain group of people. (Annika Berg, Arbetslivsinstitutet)