07/03/2018 – The Executive Director and the Board of Trustees of the Whistleblowing International Network (WIN) have written an urgent open letter to the Ministers of Justice of all 28 EU Member States.
As lawyers and experts with over 40 years’ experience in the field of whistleblowing law and practice, WIN’s Executive Director and its Board know how vital it is for organisational governance and democratic accountability that reports of wrongdoing can be made directly to competent authorities first.
If the EU adopts a directive that imposes a strict hierarchy of reporting, it will make it more dangerous for individuals to speak up, not less. This will further reinforce a dynamic of silence and resorting to anonymous leaks. Citizens need to feel empowered to challenge wrongdoing and we need organisations that welcome those who alert them to problems and act in best interests of society. The proposed Directive will have the opposite effect.
As it stands, the EU is on the verge of adopting a whistleblower law that would make it more dangerous for individuals at work to speak up about wrongdoing than it has been so far, making it easier for corruption and abuses of power to remain unseen and unchallenged.
WIN stands resolute in its opposition to a directive that imposes mandatory internal reporting as a minimum standard and urges all those in Europe working to better protect whistleblowers to join them in their call for flexible protected disclosure channels.
25/02/2019 – Today, five well-known European whistleblowers wrote directly to EU Vice President Frans Timmerman and Commissioner Věra Jourová calling on them to ensure a new law to protect whistleblowers across all 28 Member States removes any doubt that whistleblowers are protected for going directly to the competent authorities.
Last year, Timmermans and Jourová proudly presented the Commission draft stating:
“Many recent scandals may never have come to light if insiders hadn’t had the courage to speak out. But those who did took enormous risks… There should be no punishment for doing the right thing [and] today’s proposals also protect those who act as sources for investigative journalists, helping to ensure that freedom of expression and freedom of the media are defended in Europe.”
The whistleblowers also sent their letter to the European Council representing state parties in the negotiations on a new EU law. The Council’s position not only rejects decades-long, hard won protections for whistleblowers in Europe (see Ireland for instance) but seems determined to turn a law that should be designed to ensure the free flow of information for the responsible exercise of institutional authority, into an information control system to protect the reputation of employers.
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.