EU poised to adopt Directive that will give whistleblowers a fighting chance!

12/03/2019 – TODAY the Whistleblowing International Network (WIN) welcomes the news that the EU has reached an agreement that gives European whistleblowers a fighting chance to survive when they speak up in the public interest.

After tough negotiations, the provisional agreement reached late last night in Strasbourg finally removes the hierarchy of reporting obligations that would have obliged people to report to their employer’s first or risk losing all protection against dismissal or other retaliatory actions – even if they reported sensibly to a regulator body. The Directive will set minimum standards for protection that people can rely on to shield them from retaliatory actions when they speak up about wrongdoing in their workplace, to the authorities, or to the public (via the media).

EU ConferenceThe agreement was announced by Virginie Rozière at a European Parliament Press Conference this morning.

WIN and its Members worked in coalition with unions, human rights organisations, journalist associations and other NGOs, and provided as much of its long expertise defending whistleblowers through the courts and in the public arena as it could.

During negotiations, civil society delivered petitions with 280,000 signatures that demanded that whistleblowers be granted protection if they report directly outside their employment first.

The Parliament, the Commission, the EU Council and Ministers of Justice in all 28 Member States heard consistent messages from legal experts, NGOs, unions, whistleblowers and professional associations as well. The Council of Europe (the Parliamentary Assembly Committee on Legal Affairs and Human Rights; the Head of the Secretariat for the Group of States Against Corruption); the UN Special Rapporteur on Freedom of Expression, David Kaye, and the OSCE Representative for Media Freedom, Harlem Desir were amongst those calling for flexible reporting channels.

Ultimately, these voices could not be ignored!

We are delighted that Virginie Rozière, MEP (S&D) and lead negotiator for the European Parliament, stood her ground. She and her colleagues fought long and hard to ensure that Europe lived up to its commitment to make it easier, not more dangerous, for whistleblowers. Germany and France, two of the strongest opponents to flexible reporting channels were not able to maintain their blocking minority in the EU Council.

Protecting whistleblowers in law and in practice is finally being recognised and understood for what it really is – democracy in action!” said Anna Myers, Executive Director of WIN. Calling the agreement a collective commitment to upholding European values and fundamental rights, Anna said, “when battles are too often won by those who want to control information for private interests, this victory for the citizen’s right to speak up in the public interest is critical”.

While we know certain provisions should have been stronger and that our work to ensure whistleblowers are supported in reality is far from over, this Directive will at last provide a shared foundation for legal protections across Europe.

Over the next few days, the text will be scrutinised and finalised. We will all need to remain vigilant but we hope that by April 2019, the European Union will have made a huge step forward by adopting a Directive to protect whistleblowers that will make a positive difference to all our lives.

WIN calls on EU Justice Ministers to support flexible reporting channels in EU Directive

BREAKING NEWS
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.

Capture

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.

Whistleblowers Call on EU to Remove Obligation to Report Internally First

BREAKING NEWS
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.EU
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.

Continue reading

EU Whistleblower Directive, Poison Pill No. 3: National security loophole

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.