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. 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.
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.
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
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.