Who is a whistleblower?

Essentially, anyone reporting certain types of wrongdoing is a whistleblower.

A whistleblower could be a worker, self-employed, a shareholder, a volunteer, an unpaid trainee a contractor, subcontractor or supplier, a former worker, or even someone going for a job interview and coming across information about corruption. There is no one legal definition of a whistleblower, and a lot of different perceptions.

While media headlines in recent years have focused on big scandals such as Cambridge Analytica, Dieselgate, LuxLeaks, and the Panama Papers, it is estimated that 7% of all workers will need whistleblower protection at some point in their career.

As European Green MEPs Reinhard Bütikofer and Monica Frassoni pointed out: “Ideally, we should not need to count on whistleblowers to keep people in power in check, but it is only thanks to revelations instigated by whistleblowers such as the Panama Papers and Luxleaks that financial and ethical wrongdoing on a massive scale has come to light.”

From a legal perspective, the European Court of Human Rights interprets reporting of wrongdoing in the public interest as a form of Freedom of Expression guaranteed under Article 10 of the European Convention on Human Rights.

A whistleblower should have a reasonable conviction about the reliability of the information they disclose, and also that wrongdoing is taking place. But apart from disclosure for financial gain - which is not considered whistleblowing - the motivation of the whistleblower is irrelevant.

Why are whistleblowers important?

Recent cases exposed by whistleblowers include illegal mass surveillance, industrial scale tax avoidance, abuse of environmental protections, and even the sexual abuse of children by peacekeepers. Such whistleblowing against large corporations and nation states is one of the most effective measures for combating wrongdoing that affects the whole of society.

On a personal level, many people will feel it is their duty as citizens to report crimes, or to disclose improper conduct, wrongdoing, and illegal activities. This may go further than purely illegal acts to include omissions or corruption that go against the spirit of a law.

And if civic responsibility isn’t enough, the European Commission estimates “loss of potential benefits due to a lack of whistleblower protection, in public procurement alone” is between €6 and €10 billion a year.

Why do we need to protect whistleblowers at EU level?

According to European Commission Vice-President Frans Timmermans: “Many recent scandals may never have come to light if insiders hadn’t had the courage to speak out. But those who did took enormous risks. So if we better protect whistleblowers, we can better detect and prevent harm to the public interest such as fraud, corruption, corporate tax avoidance or damage to people’s health and the environment. There should be no punishment for doing the right thing.”

Whistleblowers shouldn't be treated unfairly or lose their job because of their actions, but as a general rule, whistleblowers who report wrongdoing do so at considerable personal risk and pay a high personal and professional price,

There are huge asymmetries between whistleblowers and corporations or national authorities. Corporations will use all the tools at their disposal to hit back against whistleblowing, from invoking trade secret law, to inquiries into individual motives for public interest whistleblowers. The cost of legal proceedings alone reveal the huge imbalance of power.

In the case of the three LuxLeaks defendants through the Luxembourg courts via two levels of appeal in order to defend themselves against criminal charges. Even if successful, cases like these act as an effective deterrent to those who would speak up in the public interest.

Workers can also suffer physically and mentally if they are forced to remain in a workplace where actual or suspected wrongdoing is taking place, therefore support and defence against retaliation must be provided.

“Ideally, we should not need to count on whistleblowers to keep people in power in check, but it is only thanks to revelations instigated by whistleblowers such as the Panama Papers and Luxleaks that financial and ethical wrongdoing on a massive scale has come to light.”

- MEPs Reinhard Bütikofer and Monica Frassoni

Where does the term whistleblower come from?

Sports referees obviously! But in legal terms is was American political activist Ralph Nader in 1972 who defined it as “an act of a man or woman who, believing that the public interest overrides the interest of the organization he serves, blows the whistle that the organization is involved in corrupt, illegal, fraudulent or harmful activity.”

Other relevant parties

Other parties may facilitate a whistleblower making pertinent information public. The tiered reporting proposal does not make allowances for these individuals.

Other channels may be internal to an organisation or corporation, or they can be external such as traditional media or online platforms.

Currently investigative journalists enjoy additional rights in some EU Member States, but the legislation is patchy and some Member States have no regulation whatsoever.

The road to legislation and outstanding issues

Both the European Parliament and the Council of Member States called for additional whistleblower protection in the context of new EU Trade Secret laws. The case against the LuxLeaks whistleblower Antoine Deltour in 2016 showed that a lot more was needed.

The Commission came out with a directive proposal in 2018 which was finally adopted by the European Council in October 2019, and entered into force 16 December 2019. The directive needs to be transposed in member states by 17 December 2021.

Many recent scandals may never have come to light if insiders hadn’t had the courage to speak out. But those who did took enormous risks. There should be no punishment for doing the right thing.”

- Frans Timmermans

Why cross-border coherence matters

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.

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