The EU Council proposal (Art. 12, at 47) bans any public disclosures “where competent authorities establish that this threatens essential national security interests.” In practice, this means intelligence agencies could ban any public freedom of expression. It replaces the public’s right to know with a government right to cover up. This open-ended national security loophole is unprecedented in whistleblower laws that protect public freedom of expression. No other whistleblower law permits those accused of misconduct the discretion to cancel protection for public disclosures in any context.
1. The loophole is incompatible with the Directive’s purpose. A fundamental purpose of whistleblower laws is to permit and encourage exposure of institutional misconduct that betrays the public trust. The recital repeatedly reinforces the vital importance of the media for that goal. Of course defined, lawfully-classified information must be kept secret. For non-classified information, however, the importance of public exposure applies the most for national security misconduct that can have the most severe destructive consequences.
2. The loophole is unnecessary. Para. 21 of the recital, at 10, makes clear that “[n]ational security remains the sole responsibility of each Member State, in the fields of both defence and security.” The text, at 33, reaffirms, “This Directive shall not affect the responsibility of Member States to ensure national security.” The same applies to protection of classified information. (Id.) Those laws establish well-defined boundaries restricting release of national security information. There is no basis to replace well-established national security laws with open-ended discretion by intelligence officials to impose secrecy.
3. The loophole will be abused. This subjective standard would allow any competent authority, such as an intelligence agency, to gag any public whistleblowing it chooses, based solely on its unreviewable judgment call that the disclosure threatens national security. In the U.S. experience, those agencies have candidly declared that “virtually anything” can affect national security. In practice, that has meant anything threatening agency self-interest is a national security threat as well. Further, their un-reviewed subjective judgments sometimes have been caricatures of genuine national security. To illustrate, U.S. competent authorities have gagged whistleblowers from disclosing their birthdays or the addresses of U.S. government buildings.
Solution: The subjective standard must be replaced by an objective boundary – information that has been designated as classified. That is the boundary to restrict the public’s right to know which has passed muster under the rule of law. The loophole above should be modified to read “where the report contains information that has been properly designated as classified.” This specific wording is necessary to avoid unmarked or after-the-fact classifications.
One of the draft Directive’s most significant features is the shield on civil and criminal liability when the whistleblower makes a protected report. The Council’s proposal (Article 15, at 50) qualifies that there only is immunity if the whistleblower “had reasonable grounds to believe that the reporting or disclosure was necessary for revealing a breach pursuant to this Directive.”
This unprecedented new requirement would mean it is not safe to have engaged in “protected” speech. The whistleblower also must properly guess whether his or her disclosure was indispensable, and then again whether a court would agree. Otherwise, the whistleblower will be defenseless against criminal or civil prosecution.
It would be unprecedented in global whistleblower law to impose a second test for protection against retaliation – the importance of the whistleblower. To date protected speech always and only has depended on the credibility and significance of the whistleblower’s disclosure.
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.
WIN is pleased to highlight the case of peace activist Hermann Theisen where the Court applied the provisions of the EU directive on trade secrets to acquit Mr. Theisen of criminal charges. Mr. Theisen’s case is an important contribution to the ongoing debates surrounding whistleblower protection in Germany. More broadly, though, this case is a landmark, setting the standard of how the trade secrets directive can be used as a conduit for whistleblower protection – a surprising and welcome turnaround for legislation that has a less than favourable reputation amongst many working to support and defend whistleblowers in the EU.
We are grateful to The Society for Civil Rights (GFF) for providing the summary of this case reproduced below.
In 2018, several lower courts in Germany convicted peace activist Hermann Theisen for calling on employees of weapons manufacturers to expose the illegal activities of their employers.
The Society for Civil Rights (GFF) supported Mr. Theisen in his appeal procedures to get these courts to recognise that neither whistleblowing in the public interest nor the call for it are criminal offences.
On 16 January 2019, the Munich District Court became the first court to acquit Mr. Theisen on these charges.
Hermann Theisen is not a whistleblower – but he wants to encourage others to blow the whistle. To fight illegal arms exports, he regularly hands out leaflets to the employees of weapons manufacturers close to their company premises. In these leaflets, he asks employees to consider blowing the whistle on illegal activities of their employers, such as violations of export restrictions. The leaflets also describe the legal risks that whistleblowers face.