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.
Today, 7 November 2017
A number of concerned organisations signed a joint WIN letter to the relevant Ministers of the Polish Government expressing deep concerns about the draft provisions purporting to offer “whistleblower protection” as contained in the Draft Law on Transparency in Public Life. We urge the Polish Government to reject these as not fit for purpose.
07 November 2017
The organisations and leaders within WIN, the Whistleblowing International Network, have worked in the field of public interest whistleblower law and practice for close to 40 years. Our expertise has been sought by national governments and judicial and law enforcement authorities, amongst many others around the world, looking to enhance their legal and institutional protections for whistleblowing. Our members have played a leading role at the Council of Europe, the European Union, the OECD and the United Nations as part of their mandates to support good governance and democratic accountability, the rule of law and human rights.
We write to express our unqualified agreement with the attached concerns expressed by the Fundacja im. Stefana Batorego (Stefan Batory Foundation), Helsińska Fundacja Praw Człowieka, (The Helsinki Foundation for Human Rights) and Instytut Spraw Publicznych (Institute of Public Affairs) about draft provisions of a “whistleblower” law recently proposed by the Minister, Special Services Coordinator, in the draft law on transparency of public life. The proposal purports to provide whistleblower protection for those who report evidence of certain criminal offences to the prosecutor. These provisions do not fall within the definitions nor spirit of legal whistleblower rights in any other country. Even if relevant, the provisions fail to meet even one of some 20 internationally accepted legal standards and best practices for whistleblower protection, and appear to violate European standards which includes the most recent 2015 PACE Resolution and Recommendation on Improving the Protection of whistleblowers. Continue reading