EU Whistleblower Directive, Poison Pill No. 1: New “lawful methods” prerequisite for protected speech

WIN are pleased to publish the first of three video bulletins about serious problems with the EU draft Directive on whistleblowing put together by Tom Devine and the Government Accountability Project (GAP). These videos and the accompanying text summarise key issues in the proposed directive and offer robust solutions to improve the Directive and enhance whistleblower protection in Europe.

The remaining videos will be published throughout the day so keep your eye on our website and Twitter feed!

The Directive includes a new precondition to qualify for protected speech and trigger anti-retaliation rights. It no longer will be enough to prove a reasonable belief of disclosing misconduct. The employee also must first prove that the knowledge or evidence was “lawfully acquired in the context of his or her work-related activities.” (Article 3 Definition, at 36).

This additional requirement for protection would be unprecedented in global whistleblower laws. Normally the issue is considered as part of an employer’s independent justification in the reverse burden of proof. This new structure means the whistleblower’s methods will be put on trial as the opening issue in every retaliation case. Whistleblowers would have to win that battle first, even to challenge retaliation.

1. Starting each case by putting the whistleblower’s methods on trial would have a chilling effect. The EU to date wisely has rejected the “good faith” test, because it would create a chilling effect by putting the whistleblower’s motives on trial to start every case. Putting every employee’s methods on trial could have a freezing effect. Losing this preliminary battle not only would deprive the whistleblower of protection. It would be a finding of acting illegally. Whistleblowers would have to risk prosecution, not mere defeat, every time they filed a retaliation claim. Many will decide that it is too dangerous to defend themselves. The threat will come up routinely, because both public and private employers regularly contend that whistleblowers have stolen whatever evidence proves misconduct.

2. The lawful methods prerequisite functionally erases the Directive’s liability shield. The point of the liability shield is that what normally would be liable is immune when the alleged illegality is blowing the whistle. The public policy premise is that freedom to communicate evidence about breaches is more important than contradictory legal restrictions. But this new requirement for protected speech creates a sophistic Catch 22 that leaves the shield irrelevant: If the report is “unlawful,” there never is any protected speech to start with. That means the whistleblower never gets a chance to prove the report was necessary to expose wrongdoing, and that ensuing retaliation was illegal.

Solution: “[L]awfully acquired” must be deleted from the definition of “reporting person,” at 36. Significantly, this would not give whistleblowers a blank check to illegally obtain information. The liability shield covers disclosures of information, not how it was obtained. But a remedial law should not structure in threats. Deleting the prerequisite merely means that the law will not be structured to every retaliation case will not be structured to start every case by putting the whistleblower’s research methods on trial. That would have to be an independent justification from the employer.

If compromise for irresponsible whistleblowing is necessary, boundaries that limit rights should focus on the disclosure, rather than how evidence was obtained. For example, the U.S. model bans public release of information specifically prohibited by statute. That qualifier could be applied here, with the definition of “reporting person” modified as follows: “(7) ‘[R]eporting person’ means a natural person who reports or makes disclosures information not specifically prohibited by statute/national law discloses information on breaches lawfully acquired in the context of his or her work-related activities.”