30/12/2018 – WIN is pleased to highlight this blog by Tom Devine, Legal Director of the Government Accountability Project (GAP). GAP is one of the co-founders of WIN and has been working with WIN and WIN’s members and associates to promote robust and sensible whistleblower protections in Europe. The draft directive offers an opportunity for Europe to lead the way internationally. However, there are some serious pitfalls in the current proposal and the risk of even greater problems if some of the more damaging political counter-arguments are accepted. This blog was originally published by Eurocadres on Whistleblowerprotection.eu on 14th November 2018.
The European Union’s whistleblower protection directive is in a state of flux – key political battles are being fought right now. The whistleblower proposals, as they currently stand, have several Achilles heels tucked into the directive’s fine print.
If not taken forward in the right way this legislation could shrink freedom of speech rather than expand it, hence the high stakes of these ongoing political battles.
My hope is that the political compromises that will have to be made do not weaken protection against retaliatory action and the right to disclose. Even if compromises are necessary for those who fear malicious whistleblowing accusations, suppressing false statement does not require suppressing freedom of speech.
The proposed legal requirement to report everything to the employer whose organisation abused its power is extremely problematic. Especially if you then have to wait months before you can contact authorities or law enforcement agencies about the misconduct and then wait up to 9 months after the initial report, before going public. All this would make the directive counter-productive leaving whistleblowers largely defenceless unless they guess right about proposed subjective exemptions; and providing the alleged wrongdoer an enormous head start in terms of destroying information, intimidating witnesses and affecting a cover-up. This provision would fuel the obstruction of justice in a piece of supposedly anti-corruption legislation, while worsening the situation for whistleblowers, who are more likely to stay silent under these circumstances.
The current proposals require nations to have strict penalties for malicious or abusive reporting. This is problematic in that the legal definition of malicious or abusive reporting is so broad that it includes anything that is insulting. In effect, whenever you blow the whistle, you are “insulting” the person who may have engaged in misconduct. It would mean almost every whistleblowing disclosure would be vulnerable to retaliatory litigation.
Companies would then switch from firing whistleblowers to filing multi-million Euro lawsuits or even criminal cases against them. These cases could claim that those reporting wrongdoing have insulted and abused them. In such a scenario whistleblowers are again less likely to come forward. If there is a chilling effect from getting fired there is a freezing effect from facing imprisonment or a multi-million-dollar legal judgment.
There is also the issue of the burdens of proof, which is about how much evidence it takes for either side to win. The current proposals have reasonable burdens of proof, but there has been a strong political counter attack to put the onus on whistleblower to prove everything and for the accused employer to have to prove very little. A situation where the employer has no obligations regarding the burden of proof would be disastrous, and unprecedented.
Here’s why every one of 12 European nations with whistleblower laws require employers to merit a reverse burden of proof after the whistleblower has proven organizational misconduct and faced subsequent retaliation. The vindicated whistleblower is unemployed and banished from the workplace, without access to evidence. By contrast, the discredited organisation that fired the whistleblower has access to their entire labour force who they can recruit with carrots or sticks to testify against the whistleblower. They also have access to all the documents they need to fashion a case to justify their actions. If opponents of a reasonable directive succeed in gutting the burden of proof, then the legislation will become a trap which rubber stamps retaliation against whistleblowers. It would increase secrecy rather than shrinking it.
However, it is important to recognise how strong the current proposals are. When is process began observers were expecting a lot less. In the current proposal there are comprehensive three-stage rights. If the directive clears all the legal and political hurdles it faces, then 27 nations will have strong and comprehensive safeguards and protections for whistleblowers. This in itself would be a breakthrough both for accountability and for freedom of speech.
As I see it, this reform could still go either way. We could still end up with a Directive that provides advance warnings to wrongdoers, so they can cover-up, and only offers the protection of a cardboard shield that will increase even uglier retaliation. If the poison pills are removed, however, the Directive will become a metal shield which gives decent and strong protection to whistleblowers in 27 countries, marking a landmark paradigm shift.
For all those interested in making whistleblowing work for Europe, WIN has developed a set of Legal Briefs with the expertise of Tom Devine (author of this blog) and Anna Myers, Executive Director of WIN. They are based on 40 years’ of experience defending whistleblowers through the courts and in the public domain and advising governments around the world on the legislative reform needed to protect those who speak up in the interests of others.