Calling for whistleblowing is not a crime: the case of the German peace activist

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.

We are grateful to The Society for Civil Rights (GFF) for providing the summary of this case reproduced below.


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.

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The Truth Needs Friends – EU must strengthen whistleblower protection in Europe!

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.

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EU could still undermine its own objectives on whistleblower protection

06/02/19 – It is now crunch time as the European Commission, the European Parliament and the European Council engage in trilogue negotiations to agree the final text of the EU draft directive on the protection of whistleblowers.

WIN presents, courtesy of Tom Devine, Legal Director of the Government Accountability Project, an analysis of the European Council’s agreed position published on the 29th January 2019. This is what the Council is taking into the negotiations and it is much further away from the European Parliament’s position on the fundamental issue of protecting those who report information directly to competent authorities than we had hoped or can understand.

This Legal Brief explains exactly what the problems are and why enforcing mandatory internal reporting is as bad for business as it is for individuals who want to speak up about wrongdoing, even directly to their employers!

Not only does the European Council retain and reinforce the structural problems of mandatory internal reporting  – originally included by the Commission but removed by Parliament in its proposal! – it has added its own poison pills:

  • restoring vulnerability to obstruction of justice by canceling the clear right to make external disclosures to government authorities immediately;
  • adding an unprecedented subjective test as a prerequisite for the liability shield: the whistleblower not only must prove a reasonable belief of misconduct but also that his or her specific whistleblowing was necessary to reveal it;
  • effectively cancelling the liability shield while adding an unprecedented prerequisite for protected speech — that evidence was lawfully obtained, not just lawfully disclosed. Significantly, this will put the whistleblower on trial in every case, having to win that battle before being able to challenge any retaliation against them for having reported the actual wrongdoing; and
  • finally, by imposing a subjective, unreviewable, open-ended national security loophole giving each nation the option to cancel the Directive’s public freedom of expression rights

 

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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