Misuse of legal powers
Protect has noted a worrying tendency for certain laws to be misused to target whistleblowers, often in the case of those who
make disclosures to the media. From criminal and civil lawsuits, 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 whistleblowing. This undermines the public policy objective of whistleblowing protection as a form of promoting wider accountability and specifically for workers who raise concerns with the media.
MIPO is a criminal offence that applies to public officials who wilfully neglect to perform their duty or wilfully misconduct themselves. The offence carries a maximum sentence of life imprisonment. Recently the number of prosecutions has risen exponentially, from two in 2005 to 135 in 2014. Unfortunately, we have also seen the offence being used against public officials to penalise unauthorised disclosures of what could be considered public interest information.
Following the closure of the News of the World, News Corp set up a Management and Standards Committee which revealed identities of a number of confidential sources to the police. This saw the launch of Operation Elveden. During the course of the investigation over 90 arrests were made resulting in 34 convictions, the majority of whom were public officers found to have taken money from journalists in exchange for information. Ranging from government misspending to salacious gossip, the public interest in each disclosure varied considerably. While morally questionable, receiving money in return for information in many of these cases may have been secondary to the officer’s primary intention to act as a whistleblower. As a result of the investigation, over 30 journalists were also arrested on suspicion of conspiracy to commit misconduct in public office for their role in providing payment for this information. Whether morally bankrupt or ultimately serving the public interest, the selling of information to the press was widespread prior to the Leveson Inquiry. The Elveden cases show just how ambiguous the offence is, with many individuals unaware of their status as a public official and journalists as their proxy in committing the offence.
The use of the counter-terrorism legislation and the Regulation of Investigatory Powers Act 2000 (RIPA) by police to intercept journalists’ and whistleblowers’ phone records was exposed following the Plebgate and Chris Huhne scandals.
Osita Mba blew the whistle on a £10 million sweetheart deal between Goldman Sachs and his former employer HM Revenue and Customs, exempting the bank from paying its taxes. Osita informed the auditor general of the National Audit Office and two parliamentary committees of the wrongdoing. In the meantime, his identity was revealed to HMRC who banned Osita from entering the workplace, initiated an investigation and disciplinary proceedings against him, and threatened him with the possibility of prosecution. More than a year later, it came to light that HMRC had used the powers under RIPA to search Osita’s belongings, emails, and both his and his wife’s phone records. MPs severely criticised HMRC for using these powers against Osita, and praised him for bringing his concerns to light. Osita left HMRC and filed a PIDA claim.
Protect has been lobbying for better whistleblower protection in the Investigatory Powers Bill for intelligence services staff (who are currently excluded from PIDA protection) and those working for communications service providers. Protect Supported the Press Gazette ‘Save Our Sources’ campaign to end public authorities accessing journalists’ phone records. The campaign has resulted in the Acquisition and Disclosure of Communications Data Code of Practice (which is now underpinned by law). This gives explicit protection to journalists and their sources for the first time in RIPA.
In April 2016 the European Parliament passed the Trade Secrets Directive by a large majority. The new Directive seeks to harmonise trade secrets laws across the EU Member States. Under the law, individuals who reveal a trade secret may be subject to civil penalties.
Protect advocated for better protection for whistleblowers and there is now an exception in the Trade Secrets Directive to this effect. We also ensured that when the directive was implemented by the UK Government that PIDA was highlighted as protection for whistleblowers. However, the burden of proof still remains on the individual to show that they did not reveal a trade secret. Protect has been supportive and contributed evidence to the draft whistleblowing Directive that was launched in 2018 that will mitigate some of these effects.