The Society for Civil Rights (GFF)is supporting Hermann Theisen in the appeals against his conviction for calling on employees of arms manufacturers to expose illegal activities that their employers may be involved in. On 16 January, the Munich District Court was the first court to acquit Mr. Theisen.

Conviction intimidating for potential whistleblowers

Mr. Theisen is not a whistleblower, but he encourages others to blow the whistle. With the aim of fighting illegal arms exports, he regularly hands out leaflets to the employees of weapons manufacturers near the companies’ premises. In these leaflets, he asks employees to consider blowing the whistle on illegal activities, such as the violation of export restrictions. The leaflets also describe the legal risks that whistleblowers face.

In 2018, three lower courts in different parts of Germany convicted Mr. Theisen of having “publicly incited to disclose trade and industrial secrets”. He was fined. The convictions not only affect Mr. Theisen personally, but also serve to intimidate potential whistleblowers. If the call for whistleblowing results in fines, then actually disclosing illegal business activities would almost certainly result in criminal charges.

Lower court judgements questionable

GFF finds the lower-court judgments legally questionable in in various respects. Most importantly, the behavior that Mr. Theisen allegedly incited is by no means a criminal offence; rather, by disclosing illegal business activities, whistleblowers contribute to the investigation of potentially criminal offences.

This is reflected in European law. According to Art. 5 of the EU directive 2016/943 on trade secrets, disclosing information on illegal activities cannot be punished because whistleblowing in the public interest is not a crime.

Milestone for protection of whistleblowers in Germany

On 16 January 2019, the Munich District Court took the same view and acquitted Mr. Theisen of the charges against him. Mr. Theisen had to rely on the directive itself as Germany has not yet transposed it, despite the transposition period having ended in June 2018. This is the first time the EU directive on trade secrets has been applied by a German court and it is a milestone in the protection of whistleblowers in Germany.

GFF continues to support Mr. Theisen in obtaining an acquittal in his two other appeal proceedings. We also want the German judiciary to recognize the important function of whistleblowing for a democracy.