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.
This month, two of WIN’s co-founding member organisations hit major milestones. The Government Accountability Project (GAP) in Washington DC held a gala on 15th November to celebrate 40 years of pioneering work defending whistleblowers through the courts, the media and in the public domain. At a reception in the House of Commons on the 14th November, Protect (formerly Public Concern at Work) celebrated 25 years’ running a free legal advice to whistleblowers and working hard to create safer and more responsive workplaces throughout the UK.
It is fantastic that these organisations are continuing to work hard to make whistleblowing work in the public interest. In fact, like so many small but mighty NGOs, they are so busy they rarely have the time to explain clearly the importance of the work they do. This is something that WIN aims to change.
As part of this effort, WIN is delighted to share this short film made by Protect for its 25th anniversary, explaining what they do and providing an insight into their challenging but essential work with whistleblowers. While every organisation working in the whistleblower protection field is unique, Protect’s mission is shared by many of those participating in WIN – to ensure whistleblowers are safe to speak up, their messages are heeded and the public interest is protected.
The Hermes Center for Transparency and Digital Human Rights and the Renewable Freedom Foundation are inviting investigative journalism groups and human rights grassroots organisations in Europe to apply for the first round of the Digital Whistleblowing Fund – a small-grant project providing financial and technical support to start secure anti-corruption whistleblowing projects.
In order to be eligible for the Digital Whistleblowing Fund, your organisation needs to be part of or explicitly endorsed/referred by one of the following coalitions or networks:
- Whistleblowing International Network (WIN)
- Transparency International
- Southeast Europe Coalition on Whistleblower Protection
- International Consortium of Investigative Journalists
WIN is delighted to support the Digital Whistleblowing Fund and strongly encourages all of WIN’s European Network participants to have a look!
Deadline for first round applications: 31st December 2018
WIN is offering these Legal Briefs to all those interested in making whistleblowing work for Europe. They were developed with the expertise of Tom Devine, Legal Director of the Government Accountability Project in Washington DC, a co-founding member of WIN 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.
Right now, the EU is going through the process of debating and amending a draft directive to protect whistleblowers across Europe. We want to help the policy makers and legislators to get it right!
Our Legal Briefs focus on the significant problem of mandatory internal reporting which renders the entire draft directive structurally unsound; the need to remove the mandatory penalties for malicious and abusive reporting, a potentially fatal flaw which will substitute worse retaliation with a greater chilling effect than current job-based harassment; the necessity to get right the legal burdens of proof to give whistleblowers a fighting chance to succeed in seeking justice; the importance of protecting those who initially who raise concerns anonymously, and the need to ensure available remedies are adequate to buffer whistleblowers from the damage of a sustained professional and personal campaign to discredit them. There are also some important elements missing in the draft directive such as a duty to prevent harm and the need to train judges on whistleblower laws.
09/10/18 – WIN is pleased to provide an update from the Stefan Batory Foundation on the proposed whistleblowing law in Poland.
A year ago, a coalition of Polish NGOs – including the Stefan Batory Foundation, the Helsinki Foundation for Human Rights, the Institute of Public Affairs and the Trade Union Forum – began working on a Citizen’s Draft Law on Whistleblowers’ Protection. They wanted to provide a strong model for whistleblowing legislation in Poland that met international best practice and against which any government proposals could be effectively measured. The current version of the Citizen’s Draft Law is available in English here.
The Citizen’s Draft Law proved its value almost immediately when, in late 2017, the Polish NGO coalition were able to present it as antidote to dangerous proposals on “whistleblowing” drafted by the Coordinator of the Special Services. The Special Services proposals were included in the Government’s draft law on transparency in public life. The Stefan Batory Foundation strongly criticised the proposals, as did WIN who sent a letter from international experts urging the Polish Government to reject the whistleblower protection provisions as not fit for purpose.
But work on a Citizen’s Draft Law on Whistleblowers’ Protection continued and, in April 2018, the Stefan Batory foundation and the NGO Coalition launched an independent public consultation. The launch was held at the first of two public meetings and so far the consultation has gathered over 100 comments which will be taken into account whilst the coalition prepares the final version of the Citizen’s Draft Law.
Anyone interested in effective whistleblower protection is encouraged to review the Citizen’s Draft Law on Whistleblowers’ Protection and submit their comments here!