Non-disclosure agreement on remuneration and freedom of speech – a partially critical commentary on the Judgment of the European Court of Human Rights of 20 June 2024, Application No. 4110/20, Boronyák v. Hungary

Abstract

The judgment of the European Court of Human Rights (ECtHR) under review is noteworthy for its clear emphasis on the primacy of a contractual obligation to respect the confidentiality of trade secrets regarding remuneration, overriding the freedom of expression and even the right to access public information. The most interesting aspect of the judgment lies in the ECtHR’s search for justification to allow the exclusion of freedom of expression in a civil contract concerning the disclosure of salary information, drawing an analogy to the obligations of an employee under an employment relationship. The ECtHR’s reasoning that voluntary submission to the terms of a civil contract is similar to an employee’s subordination, who is, by default, prohibited from disclosing their salary, is flawed. Although the final conclusion of the ECtHR is correct (the contractual obligation to protect trade secrets in relation to salary does not violate Article 10 (2) of the Convention), the reasoning behind it raises concerns. It is necessary to consider the legal system of the Council of Europe, which allows employees to disclose their remuneration, despite the formal limitation of the ECtHR’s jurisdiction to the Convention. Salary transparency serves as a tool supporting the principle of equal pay established in the European Social Charter. Therefore, the permissibility of contractual restrictions on freedom of expression lies not in the similarity to the employment relationship but in the need to protect property (trade secrets) and the possibility of self-restraint by the parties to the agreement. In this respect, the ECtHR’s emphasis on the lack of primacy of the public right to information over a contractual non-disclosure agreement is commendable, provided that access to public information can be obtained by other entities.