The Duty Speech Loophole: how the EU Whistleblower Directive could backfire against its own objectives
Tom Devine, Legal Director of the Government Accountability Project (a co-founder of Whistleblowing International Network) 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”
This article first appeared on the Whistleblowing International Network website
Devine 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.
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.
Good employer whistleblower arrangements are those that support rather than replace regular communications
Good employer whistleblower arrangements are those that support rather than replace regular communications that occur as part of everyone’s job responsibilities within any business or organisation. Instead, the EU draft directive seeks to limit protected reports within the employment relationship to a single designated channel. This risks undermining employers’ management structures and risk management systems, leaves whistleblowers defenceless if they are retaliated against for doing their jobs, and diverts information away from those who need it the most.
The EU draft directive seeks to limit protected reports within the employment relationship to a single designated channel.
After 40 years of advising whistleblowers and being at the forefront of laws to protect whistleblowers in the United States and around the world, Tom Devine’s expertise is grounded in the reality of whistleblowing and what makes good organisations even better. The European Council should be listening.
The WhistleblowerProtection.EU platform is celebrating a job well done, after the Legal Affairs Committee of the European Parliament passed a strengthened whistleblower protection directive, on the 20th of November.
The EU’s whistleblower protection directive, is in a state of flux, key political battles are being fought right now. The whistleblower proposals as they currently stand, have several Achilles heels tucked into the directive’s fine print.
The LuxLeaks revelations were unprecedented not only in the level of corruption they uncovered, but also in the vast array of journalists from different media organisations working together to uncover corruption.
Many of the biggest whistleblower disclosures of recent years have been international in nature – LuxLeaks and the Panama Papers in particular. As pointed out by the Greens in the European Parliament, there is a general European public interest that often supersedes the national interests of a single member state.