Brexit looming casts shadow over EU whistleblower protections
Not the least of the remain side's problems in the 2016 Brexit referendum was its inability to put forward a positive case for staying in the EU. This was in some ways understandable: the punishment of Greece, continuing disgrace of the external border and 2016 deal with Turkey, together with a tax avoidance scandal hitting the very heart of the EU bureaucracy didn't offer many great talking points. Rather surprisingly, the last of these has now resulted in the European Commission proposing a draft Directive on whistleblower protection that, at least in some respects, is fairly groundbreaking. How on earth did that happen?
In 2012 PricewaterhouseCoopers auditor Antoine Deltour discovered industrial scale tax avoidance that allowed large transnationals to deprive EU countries of tax revenue by way of private agreements with another EU member state, Luxembourg. Initially publicized by French TV, the series of Luxembourg ‘comfort letters’ were eventually published by the International Consortium of Investigative Journalists in November 2014. Jean Claude Junker, the Prime Minister of Luxembourg at the time many of the agreements were reached, had just become President of the European Commission. The timing was right, the implications for austerity politics and the functioning of the single market were clear and a furore duly resulted.
Because Luxembourg is one of the two European countries where banking secrecy is policed with the sanction of the criminal law (Switzerland is the other one), Antoine Deltour, a second whistleblower Raphael Halet and – incredibly – the French TV journalist Edouard Perrin found themselves facing criminal charges in a Luxembourgeois court. Despite later avowals, PwC effectively bought the prosecution. They also threatened Halet with the loss of his home should he try to mount a proper defence.
At the same time, a Trade Secrets Directive was winding its way through the European institutions. Just about the only element of the Obama-era trade agenda that made it to prime time, trade secrets legislation grants corporations wide discretion to designate information as a ‘trade secret’ and exact hefty financial penalties should it be disclosed to competitors, or the public. The repercussions for journalism, corporate accountability and, frankly, anyone concerned about decision-making by proprietary algorithm should be crystal clear.
As a result of campaign pressure some less-than-perfect protections for journalists, whistleblowers and trade unionists made it into the Trade Secrets Directive, but more importantly an alliance was convened to press for stronger whistleblower laws to override the Directive and others like it. A few consultations and roundtables later, the European Commission published their proposals this April and their content took everyone by surprise.
There are two key elements of good whistleblower protection laws: making sure someone trying to blow the whistle is protected from negative consequences (not just lawsuits, but employment, financial and other types of retaliation) and ensuring that their complaints are actually heard and taken seriously. The Commission's proposals attempt to do both, which is more than most national whistleblower protection frameworks do at present.
Similarly impressive is the fact that the proposals cover a wide range of working relationships, meaning they should cover many of those who blow the whistle on organizations they don’t work for, a group who often get ignored. The proposals specifically cover those blowing the whistle on potential data breaches and network security issues, a group who currently run the risk of criminal prosecution for their work in the public interest and are clearly in need of better protection.
All of that is praiseworthy; however, there are some omissions. It would be better if the ability to blow the whistle was considered an element of freedom of expression available to everyone. The proposals have nothing to say about whistleblowers whose disclosures impact issues of national security. Given the ease with which governments can plead secrecy to get themselves off the hook on difficult issues, it probably should do. The draft Directive also fails to recognize the importance of anonymity as a source of whistleblower protection, something that privacy enhancing technologies have made much more obvious in recent years. Some of the protections afforded the subjects of whistleblowing reports go further than necessary.
But the signal failing of the draft Directive is that it is too doctrinaire about to whom whistleblowers should report. To mandate that all private and public organizations employing more than 50 people (and every single financial services company) should set up proper channels for employees to make reports is obviously valuable; studies show that 90 per cent of whistleblowers will use these mechanisms if they can. The minority who need to go straight to external bodies or the media, whose disclosures tend to involve particularly grave issues or expose systematic patterns of behaviour, should be able to exercise that choice freely and not be subject to delays, stonewalling and worries about whether or not they will be protected.
The proposals will now be considered by the European Parliament, where the committee process is already underway, as are efforts to remedy the issues discussed above. The real challenge will come at the turn of the year, when the representatives of national governments in the European Council will have to be persuaded not to kill the initiative by inaction. At that point, whistleblower advocates in the UK will have to work out how we can stop truthtellers here from being disadvantaged by the Brexit referendum result of 2016.
Naomi Colvin is Director of the Courage Foundation, which supports whistleblowers, hacktivists and other truthtellers who have made important contributions to the historical record.
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