Democracy & Justice

What Is a Whistleblower? Is Whistleblowing Protected by Law?

Whistleblowers can be essential in bringing to light illegal activities, corruption and threats to the public good. Yet despite their crucial role, legal protections for whistleblowers are lacking or non-existent in many EU countries.

by Jonathan Day

What is a whistleblower?

Whistleblowers are people who disclose information on activities that they consider to be illegal or grossly unethical. They often work in private companies or government agencies and report on behavior within their own workplace, although this is not always the case. According to the European Union’s definition, whistleblowers need not work for the organization they report on – they can merely be “in contact with such an organization” to qualify for legal protection under the EU’s 2019 directive on whistleblower protection.

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What does and what doesn’t count as whistleblowing?

Most often, a whistleblower brings attention to fraud, corruption, misuse of personal or public data, mismanagement of funds, or other actions or policies that represent a threat to the public interest or national security. It is not necessary for a whistleblower to be aware of the specific laws that they believe are being violated, and the EU notes that violations may be “categorized under national law as administrative, criminal or other types of breaches.” It also lists the types of reporting that counts as whistleblowing under its directive:

-Public procurement

-Financial services, anti-money laundering and counter terrorist financing

-Product safety

-Transport safety

-Environmental protection

-Nuclear safety

-Public health

-Food and feed safety, animal health and welfare

-Consumer protection

-Protection of privacy and personal data, and security of network and information systems

The list makes clear that the reporting must concern something that threatens or harms the public good in some way. Personal grievances, disagreements or similar workplace issues are not matters that affect the general public, national security or other areas where whistleblowing protection comes into play. So reporting that you’re being bullied or harassed by someone at work, while quite serious, would not fall within the scope of “whistleblowing” as defined by law.

Are whistleblowers protected by law?

For the most part, yes. But legal protections for whistleblowers vary widely from country to country, even in the EU. While the EU did pass legislation protecting whistleblowers, it is in the form of a directive, not a regulation. This means that it affords full legal protection as far as EU law is concerned and member states must tailor their national laws to be in line with the aims of the directive (within two years of its adoption). Unlike a regulation, however, member states do not need to copy directives in their entirety into national law.

Unfortunately, many EU countries are dragging their feet on protecting whistleblowers. A 2021 report by Transparency International found that by the deadline for transposition of the EU whistleblower protection – in December 2021, two years after the EU adopted it – many countries had made “minimal or no progress” towards updating their national laws, while only four countries had fully brought their national laws in line with the directive.

The apparent lethargy of member states only underscores the need for strong whistleblower legislation at EU level. Liberties had long advocated for strong EU legislation to protect whistleblowers before the directive was adopted, and the Commission itself was careful to note the member states’ progress on this front in its 2021 Rule of Law Report. Liberties remains hopeful that the Commission will increase pressure on member states that continue to put off whistleblower legislation.

Famous whistleblowing cases worth knowing about

Perhaps the most famous present-day whistleblower is Edward Snowden. While working for the United States National Security Agency, Snowden leaked classified documents that disclosed extensive surveillance programs run by the NSA and other intelligence agencies in cooperation with European governments. The leaks sparked a global discussion of government surveillance and the right to privacy. Snowden left the United States before leaking the documents and, under indictment back home, eventually settled in Russia.

In the EU, the actions of whistleblower Antoine Deltour led to the 2014 LuxLeaks scandal. Deltour, then an employee of PriceWaterhouseCoopers in Luxembourg, leaked the tax rulings of more than three hundred multinational companies based in Luxembourg. The documents revealed that the companies were cutting their tax bills by playing EU countries’ tax laws off against each other. Deltour was eventually convicted of theft and other crimes related to the leaks, although his conviction was overturned on appeal.

Chelsea Manning is another recent whistleblower whose actions brought worldwide attention. In 2010, while a United States Army soldier, she leaked some 750,000 classified or sensitive documents to WikiLeaks, including diplomatic cables and evidence of human rights violations in Iraq and elsewhere. She was given a 35-year sentence for theft of government property and Espionage Act violations, although her sentence was later commuted by President Barack Obama.

Do you want to report waste, fraud, abuse or corruption? What to do and how to do it

One of the primary reasons for giving whistleblowers legal protection is to encourage others to come forward and reveal illegal or dangerous activities. Yet even when one enjoys such protection, the reporting process may not be so clear. Some governments and companies offer guidance on whistleblowing, but most don’t. And while all cases are unique, here’s a general guide to blowing the whistle.

Where to go if you have concerns?

A good first step is to become fully aware of your organization’s policies regarding whistleblowing. It might have an internal reporting mechanism, possibly anonymously, allowing the wrongdoing to be righted without the need to bring in outside entities. Edward Snowden insists that he first tried to keep his concerns within the US government, and only went to the press after being ignored by his superiors.

If you find internal resolution to be impossible, you’ll have to report your information to a third party. If you work for a private company, you could bring your matter to law enforcement entities, and some governments have even established dedicated offices for reporting corruption and illegal activities. This can often be done anonymously. Another option is going to the press or a non-governmental organization. Journalists can break the story to the public while keeping their source (you) anonymous.

What to do before you report a concern?

Your first step should be to gather evidence of your claim. It won’t be enough to claim wrongdoing; internal memos, emails, tax filings and other documents are often collected by whistleblowers as evidence of the claim they intend to make.

Considering that many whistleblowers face investigation or even prosecution, it may also be good to seek legal advice before blowing the whistle. Even in countries with robust fundamental rights protections, if not whistleblower protection legislation, people who report wrongdoing often face legal exposure.

How can you report your concern?

Many countries have set up offices that support several reporting options, including traditional mail, email, fax, phone and even in-person reporting. Your company may have a similar office that allows employees to report wrongdoing.

Whistleblowers often bring complaints to journalists. This can help them stay anonymous, as good journalists will maintain the anonymity of their sources, if desired. It can also help bring public attention to the matter, and pressure authorities to act if wrongdoing is clear. Finally, if you believe you have evidence of a crime, reporting it to law enforcement is another option.

Can you report anonymously or confidentially?

In most cases, whistleblowers are able to make claims anonymously. This is important to ensure their protection and show other potential whistleblowers that authorities are interested in the information, not the informant. Regrettably, a whistleblower’s identity may be outed by other parties – a disgruntled former colleague, say – in some cases, but generally you should be able to make a claim anonymously.

What will happen after you report a concern?

Many of the most famous whistleblowing cases have ended in the prosecution of the whistleblower, or their revelations forced them to flee to another country or withdraw from public life. And there’s no certainty that, even despite legal protection, there won’t be some retribution against the whistleblower, such as demotion or even termination of employment.

It is hoped that all EU countries will soon adopt strong whistleblower protections and enforce them, making such concerns a thing of the past. After all, the actions of whistleblowers only help societies become safer and stronger, and people more trusting of each other and their governments.

Further selected reading:

Why Is Freedom of Speech Important in a Democracy: 5 Reasons

SLAPPs In Europe: How The EU Can Protect Watchdogs From Abusive Lawsuits

Journalists Questioned Over Report; Concerns Remain Over Draft Law On Whistleblowers’ Protection

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