‘Ireland had the strongest whistleblower law in the EU and had inspired reform with its legislation around the world. It looks like the government has broken something that didn’t need to be fixed. Irish whistleblowers, business and the Irish public will be the real losers here.’
Whistleblowing International Network (WIN)
04/07/2018 – WIN Director Anna Myers has joined several expert organisations, legal advisors and practitioners in signing a letter from Transparency International Ireland urging the Irish Government to amend the EU Protection of Trade Secrets Regulation (SI 188) on the basis of its creation of a new test for whistleblowers. Unlike the existing Protected Disclosures Act 2014 (PDA), SI 188 requires whistleblowers to demonstrate that their disclosure was motivated by a general public interest concern even if the disclosure is later deemed to be true, related to a criminal offence, or they reported it to their employer or the appropriate authorities.
Whilst the EU Trade Secrets Directive (passed in July 2016) is supposed to provide strong safeguards for intellectual property holders, there is no requirement in the Directive for any EU Member State to create an additional test for whistleblowers. Under the terms of the Irish proposals, whistleblowers reporting offences to the Office of the Director of Corporate Enforcement or to law enforcement will not only be required to show they believed a crime was or about to be committed but will also have to prove they were motivated to protect the general public interest in reporting the crime.
The serious implications of this additional layer of difficulty in reporting safely, compounded by the increased risk of criminal prosecution inherent to the proposed amendment cannot be understated. It introduces yet another barrier to anyone disclosing potentially serious unlawful and unethical practices whether they work in a bank, private healthcare, for a pharmaceutical or IT company. In short, it places consumers, patients and the general public at much greater risk of corporate fraud, malpractice and cover-ups.
Under the proposed Irish amendment, an employer would be able to take legal action against a member of staff for damages, seek a court injunction or even press criminal charges by alleging that information they consider commercially valuable – such as emails, phone records or financial data – was obtained unlawfully. Moreover, it gives Irish employers the power to question the motivation and, therefore, the personal reputation and character of a whistleblower in court – something that was specifically ruled out when Ireland’s gold-standard whistleblower protection law was adopted only four years ago.
At a time when whistleblower protection is seen as one of the most important tools to tackle corruption and promote greater transparency and accountability at all levels of society, Ireland is taking a backwards step. It is essential that that we identify and separate the competing forces invested in the control of information in order to highlight the nature of the challenges they present to whistleblower protection. The recent shifts in European legislation towards prerogatives of trade secrecy represent the unwelcome transposition of corporate interests and priorities into the arena of civil society and public interest concerns.
SI 188, as currently drafted, has the potential to trap whistleblowers in the absurd and untenable position of facing criminal prosecution for reporting a criminal offence because their disclosure relies on information the perpetrator alleges is a trade secret unless they can prove that they were motivated to protect the general public interest in reporting the criminal offence. With penalties of up to three years in prison and a €50,000 fine for trade secrets offences, not to mention the high financial and personal costs of facing High Court legal action, the pressures placed on a whistleblower in this scenario are seemingly insurmountable.
If this amendment goes ahead, the law itself will deter those hoping to speak up against corruption and wrongdoing! It will act to obstruct the pursuit of transparency and democratic accountability and, ultimately, block the Irish public’s right to know. For a country that experienced the misery caused by a banking crisis and a public well aware of the risks of corporate secrecy, hubris and cover-up, this is surely unacceptable.
For these reasons, the wider international whistleblower protection community should join Transparency International Ireland in calling for the Irish government to scrap the amendment.