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

 

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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