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.
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.
WIN is supporting this campaign by the Green/EFA Group in the EU Parliament because we have a massive opportunity to end the fear, silence, loneliness and bullying that some people suffer from just telling the truth. The European Union is on the verge of enacting new legislation that would change the lives of people who reveal the truth about illegalities, corrupt practices and other dodgy dealings – otherwise known as “whistleblowers”.
The first of its kind, the new European Whistleblower Directive would oblige all EU governments to introduce minimum standards of protection for truth-tellers. These protections would include penalties for people that retaliate against whistleblowers or try to shut them up; an obligation for public and private bodies to set up channels for receiving reports and to keep the identity of the whistleblower confidential; and legal shields for whistleblowers so that, if for example they breach a confidentiality agreement, they would not be held liable for it.