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.
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.