The Duty Speech Loophole: how the EU Whistleblower Directive could backfire against its own objectives


 
Tom Devine, Legal Director of the Government Accountability Project (a co-founder of WIN) explains that unless a serious “technical contradiction is resolved [the EU draft directive] could backfire against its own objectives, against employers and especially against whistleblowers”. He urges the European Council to avoid violating fundamental global best practices in whistleblowing laws by adopting the precedents of EU member states of Ireland and the Romanian Presidency Romania where no such mandatory internal reporting through designated channels exists.

Reporting internally should be protected easily – organisations should want to learn about any and all potential problems early and promptly with few barriers for staff to speak up safely. However, according to the draft directive, staff will only be protected from retaliation if they use the official channels employers will be required to set up. This misunderstands the essence of all whistleblowing laws to create safe channels for the free flow of information in order to responsibly exercise authority.

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WIN Co-Founder calls on German government to ensure EU Directive “lives up to Europe’s promise of democracy”.

cropped-whistleblower-business-cards3-1311/01/2019 – In a press release yesterday,
WIN Member and co-founding organisation Whistleblower-Netzwerk called upon Germany, as a key member of the European Council to agree on minimum standards for whistleblower protection by February so that robust protection for whistleblowers can be adopted before the European elections in May 2019.

Outlining three minimum standards that would vastly improve legal protections for whistleblowers in the EU, Whistleblower-Netzwerk also challenged the German government to make their stance on whistleblower protection clear and asked whether Germany’s influence in the European Council would once again be used to obstruct progress on the issue.

WIN is committed to making whistleblowing work in Europe and is pleased to support organisations like Whistleblower-Netzwerk who are campaigning for democracy, transparency and accountability – qualities that are absent from the current focus in the European Council on employer security and the safeguarding of trade secrets.

The full statement is reproduced in English below, please visit Whistleblower-Netzwerk for more information, including a copy of the press release in German.

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The European Council must ensure EU delivers on its promise to whistleblowers

The current deliberations of the European Council suggest that the whistleblower protection directive they are considering could risk putting European whistleblowers in more peril, rather than offering them greater protection.

europe_3068260bOn 23 April 2018, the European Commission published a draft law to protect whistleblowers across the EU. A door was flung open that had previously been locked shut. Like our members and associates in the whistleblower protection community, the Whistleblowing International Network (WIN) welcomed the fact that EU was finally moving to provide a solid statutory basis on which member states would have to protect whistleblowers. But on a second look, it turned out the draft directive made basic but fundamental mistakes. It is from these errors that we have all been scrambling to recover.

Fortunately, JURI, the legal affairs Committee of the EP, the lead parliamentary committee in charge of responding to the draft rose to the challenge and did a lot to improve and strengthen the whistleblower protection draft. If all the Committee’s amendments are adopted, the EU will have a strong foundation for protecting whistleblowers and protecting the public interest for years to come.

However, the main mistake, which the EU Council seems set to embrace, is that the draft reinforces employer control over the reporting of wrongdoing. It does so by making it a requirement for all those in a work-based relationship to report their concern to their employer first. With a three-month imposed time-lag and a requirement to use the channels employers set up, it is akin to legislating an obstruction of justice.

The vast majority of all whistleblowers stay in-house trying to do their jobs and ensure their organisations fulfil their roles responsibly. But those who perceive the need to go straight to the authorities should not, under any circumstances, have to guess whether a court would agree they were reasonable thinking that sharing their evidence with alleged wrongdoers would enable cover ups. This is the exactly the risk that a whistleblower protection law should help alleviate.

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New Chance for Openness in Australia

australian-law-810x540WIN is delighted to publish this article by Professor AJ Brown on the exciting new amendments now making their way through the Australian Parliament. Why are these amendments so important? Anna Myers, WIN’s ED, explains at the end of this blog that these amendments focus on the crux of whistleblower protection, which is to reinforce and maintain credible and accountable governance at all levels of the private and public sectors. This means being able to hold those who have power to account for their conduct. But will the EU follow Australia’s lead?

After a long gestation, Corporations Act amendments passed by Australia’s Senate last week promise a whole new level of whistleblower protection in the private sector, with flow-on effects for the public sector, once approved by the entire parliament in February next year.

Whistleblower protection is also featuring prominently in Australia’s ongoing debate over a new national integrity commission. It is especially topical given the role played by whistleblowers like Jeff Morris in uncovering the wrongdoing at the banking royal commission.

Recently as well, the role of James Shelton and Brian Hood could be told. These were managers who stepped up to reveal appalling foreign bribery by Australia’s Reserve Bank-owned companies, Securency and Note Printing Australia – the nation’s biggest and worst corruption scandal.

So the Australian government’s amendments to overhaul protections for corporate employees could not come at a better time.

Previous plans to limit this to extreme, unlikely emergencies have been shelved. Instead, if employees blow the whistle at least to a regulator, and nothing is happening in 90 days, it is relatively simple for them to go public.

There are some hoops to go through, and time will tell if they are still too tight. But this will be Australia’s most powerful driver yet, not just for companies to improve their culture and compliance but for regulators and law enforcement agencies to change their previous lax ways.

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