There are various types of alleged wrongdoing about which whistleblowers make information available to the public, such as a threat to the public interest or national security, fraud, corruption, misuse of personal data, unlawful use of private information, or mismanagement of funds. Because they are reporting misconduct, whistleblowers are routinely vulnerable to retaliation from their employers. They may lose their jobs, be harassed by bosses or be sued.
How far will the Commission go?
In publicising unlawful or unethical behaviour, whistleblowers often (but not always!) break some laws themselves: they download information from databases they are not supposed to have access to, they make illegal recordings, they leak highly confidential information. As a result, whistleblowers tend to face legal problems and risk criminal prosecution.
The European Commission has recently held a public consultation on whistleblower protection. In the Commission’s view, by reporting or disclosing unlawful acts or omissions whistleblowers can prevent harm to the public interest. Based on this assumption about the beneficial nature of whistleblowing, the Commission is planning to strengthen whistleblower protection. Now, the question is: how far? Will they protect fully law-abiding whistleblowers from workplace retaliation only or will the protection amount for something more?
Laws must extend further
It is important to note that existing laws standardly protect law-abiding whistleblowers from victimisation at their respective workplaces only and do not apply to cases where whistleblowers break the law when whistleblowing. Liberties thinks that they should. We believe that the law should explicitly state that whistleblowers are not to be punished for their unlawful acts when two important conditions are met. The first is that a whistleblower reveals new information to the public and that there was no other way to reveal the wrongdoing in question except by breaking the law. The second is that the harm caused by the law-breaking should be proportional to the resulting benefit for the public good.
We contend that whistleblowers should be protected when they break the law, but only in certain circumstances. And this is because they are not like ordinary offenders. Ordinary offenders break the laws for their own interests, to enhance their own well-being. In contrast, whistleblowers serve the public interest by breaking the law, usually placing their income, freedom and psychological health at great risk. They should be encouraged to come forward. However, this is not happening to a sufficient extent because existing rules either do not protect whistleblowers at all or leave a lot of uncertainty about when whistleblowers might receive protection.
About breaking the law...
Some of you may feel uneasy reading these lines. You may object that these people are breaking the law. And some of them are not merely putting themselves at risk - which they are free to do - but rather, they are also threatening the public interest too. After all, some information that whistleblowers leak is confidential for a reason. Leaking this kind of information may undermine national security, or the economic interests of the state. You may believe that we cannot necessarily trust whistleblowers to know when the collective interest they are serving is important enough to justify them breaking the law.
You may want to add that whistleblowers break the law because they think that their law-breaking is morally justified. Perhaps you also think that sometimes you would be morally justified in breaking the law, say, because you think that a given law (for example, obliging you to pay taxes) is grossly unjust. But if as a result of your moral disagreement you do not pay your taxes in full, no human right advocate will fight to protect you from the legal consequences of your actions. Isn’t this unfair? And actually, is it really such a good idea for Liberties to encourage some people, the potential whistleblowers, to break the laws as they see fit?
These are genuinely important questions. But keep in mind that asking for stronger whistleblower protection is not the same as asking for just anyone to be protected from the legal consequences of their actions. We still argue that to claim protection as a whistleblower a person has to prove that what they have done is beneficial to society. A potential whistleblower would still need to take into account that they risk prosecution. We argue that there are some extraordinary situations when law-breaking may be justified, but those are exceptional cases. If you can prevent someone’s death by illegally obtaining data about the mismanagement of a pension-fund and leaking it before everything turns really sour, you are in such a situation. When you simply disagree with a well-established and accepted law that everyone should pay taxes, you’re not.
Make up your own mind
Now, you may feel somewhat shortchanged and still have questions. Okay, human right advocates at Liberties believe that people have a moral duty to obey the laws and that law-breaking is very rarely justified. But why do we have a moral duty to obey the laws? Why exactly are we bound to obey rules other people made and we did not agree to?
You might be surprised to learn that there is no agreement among the greatest thinkers of our times about why we should obey the law. In the following articles we introduce you to a number of theories from different philosophers exploring why we ought to do so. We will also indicate how can these theories deal with non-law-abiding whistleblowers, under what circumstances can they regard law-breaking as justified. You don’t have to buy in to any of these theories - all we want to do here is to encourage you to make up your own mind on the issue.