From exception to protection: the draft EU whistleblower directive

21st November 2016

From exception to protection: the draft EU whistleblower directive
Whistleblower protection seems to be the flavour of the month in the European Parliament. When the much maligned Trade Secrets Directive was passed by the Parliament, the Socialists and Democrats voted for the Directive on the basis that the exception for journalists and whistleblowers was ‘crystal clear’. Meanwhile in Luxembourg, the prosecutor in the Luxleaks case suggested the opposite, citing the Directive as a possible legal basis for pursuing future leaks in the case of Antoine Deltour.

Deltour, the whistleblower facing prosecution for leaking confidential information about sweet heart tax deals, was also awarded the Citizens’ Prize for his contribution to promoting common values in 2015 by members of the European Parliament. As they say, timing is everything, and the Greens/EFA group has seized the opportunity to launch a draft whistleblower protection directive – which has received cross-party support and is awaiting approval and proposal by the European Commission.

This initiative, if successful, will counter some of the negative consequences foreseen once the Trade Secrets Directive becomes law in each member state. The Greens held a launch event championing the draft whistleblower directive which opened with a keynote speech from Antoine Deltour, who highlighted the need for legal support for whistleblowers and economic compensation where individuals lose their livelihood. Deltour cited inconsistencies in national whistleblowing frameworks as one of the key indicators demonstrating the need for standardisation, much in the same way corporates lobbied for harmonisation of trade secrets laws.

The text of the Directive is certainly ambitious. It sets a minimum standard for whistleblower protection which affords more protection than many stand-alone whistleblower laws. The Directive takes a sensible approach to the problem raised by the UK case Parkins v Sodexho as individuals raising information about breaches of their own contract of employment are specifically excluded from protection. The Directive also includes provisions that require Member States to ensure that whistleblower regulations and procedures are ‘available, accessible, visible and well understood by workers’. An important development, looking beyond protection from reprisal to pro-active steps governments must take to ensure that organisations implement whistleblowing procedures and promote awareness of this key issue. There is protection from criminal and civil legal actions and the draft Directive grants a right to confidentiality throughout the ‘disclosure procedure.’ The draft Directive also calls on Member States to consider establishing a whistleblower protection authority. While non-prescriptive about what this might look like, models such as the American Office of Special Counsel or the new Dutch House for Whistleblowers may be instructive.

The Directive seeks to strike a balance between the disclosure to employers and authorities with powers to investigate and address wrongdoing and the role whistleblowing plays in promoting wider accountability in any society. As we well know, most whistleblowers try to address wrongdoing by alerting their employers about the problem first. Our research, Whistleblowing: the inside story, revealed that less than 1% of our clients go to the media to raise their concerns. The draft Directive also protects disclosures made on social media, an area which is not so clear cut under the UK law.

Here at PCaW we have seen a worrying trend in which ancient common law offences such as Misconduct in Public Office are being used to target whistleblowers who make disclosures to the media (particularly journalists and whistleblowers embroiled in the phone hacking scandal). From criminal and civil law suits, to abuse of power and threats of litigation, these actions – often taken by states or organisations with deep pockets – undermine public policy and negatively impact the views and perceptions surrounding whistleblowing. To this end, we are fully supportive of a European initiative that seeks to create minimum standards for whistleblowing protection. The project is still in its early days and big challenges lie ahead, not least the possibility of Brexit and the controversial TTIP agreement. However, one thing is for sure; legislators must move from whistleblower exception to protection to ensure that whistleblowers feel confident to speak up at the earliest possible opportunity. This is essential if we are to ensure that whistleblowing and the media continue to be effective in holding the powerful to account.