The European whistleblowing directive: a legislative barrier between journalists and their sources?

Abstract

Whistleblowers, and their cooperation with journalists, constitute a key element in preventing wrongdoings and protecting public interests. This contribution examines how they are protected in the recent Directive (EU) 2019/1937 on the Protection of Persons Reporting on Breaches of Union Law. It highlights that the final wording of the Directive still raises a number of potential concerns. The legislative process behind the Directive is outlined, illustrating the lack of consensus between the European Parliament and the Council during its drafting procedure. It is furthermore explained how the Directive aims to protect individuals from suffering retaliation in cases where they report violations of EU law. Finally, common criticisms regarding certain solutions such as the sectoral and tiered approach are addressed. These issues will have an effect on the whistleblowers’ motivation in raising the alarm, thereby diminishing their role as a journalist source.

Keywords

directive EU European Union journalist sources law legislation whistleblowing

Introduction

Investigative journalism can influence public opinion, improve the process of political decision-making and check abuses of power, whereas the lack of high-quality journalism can lead to the success of superficial journalism, making it easier to cover up malpractice and crimes (De Burgh, 2000). However, as Carson and Farhall (2018) point out, the current political economy for watchdog reporting is deeply challenging. The development of an opaque global economy has pushed the industry to adapt to using new forms of collaboration. Alliance with whistleblowers is one of the strategies that journalists and civil society have utilised to overcome the challenges they face in investigating the global economy (Titland, 2019).

In recent years, whistleblowers have played a unique role in developing ground-breaking stories on the dark side of a prosperous economic system, with the Panama Papers and LuxLeaks¹ being some of the most recent exemplary moments for watchdog journalism. Due to the fragmented legal landscape across the European Union (hereafter, the EU), the protections they are granted is often insufficient and more often than not, they become the victims of retaliation, suffering psychophysical, social or financial harm. The repercussions necessarily have a deterrent effect on potential leakers, causing a negative impact on media freedom and on citizens’ fundamental right to receive and impart information. This is emphasised by the fact that the targets of such attacks are not only the whistleblowers themselves, but anyone who helps them in the reporting process. Following the murders of two European journalists, Daphne Galizia in Malta and Jan Kuciak in Slovakia, who revealed corruption in their respective countries, it is clear that attacks can often be directed at members of the media. While by their nature, Eldridge (2019) notes, journalists are rarely the subjects of their own stories and are more often in the background, ground-breaking news stories such as WikiLeaks and Manning who leaked classified information on Iraq war in 2010 (Jordan, 2019; Zajácz, 2013) as well as the Snowden revelations on mass surveillance in the United States in 2013 (Coleman, 2019) call for greater attention for those involved in the newswork behind the headlines.

On an international level, the European Court of Human Rights (hereafter ECHR) has been continuously affirming the rights of whistleblowers to freedom of expression and to protection against retaliation following its ground-breaking judgement in the case of Guja v. Moldova (2008). In this judgement, the ECHR set out the criteria to consider when deciding on whether the whistleblower rightly exercised their freedom of expression by disclosing the information about a wrongdoing directly to the public. Furthermore, a variety of international organisations have also advocated for the improvement of whistleblowing regulations over the years, such as Transparency International (2013) and the OECD (2016). Nevertheless, only a few EU Member States showed any enthusiasm in adopting the relevant legislation (White, 2018).

On 23 April 2018, the European Commission (hereafter, the Commission) proposed widening the existing EU sectoral approach in a directive ‘on the protection of persons reporting on breaches of union law’ (European Commission, 2018a). The legislative proposal represents the first attempt to eliminate the fragmented and insufficient regulation of whistleblower protection and to ensure an effective and secure system for reporting breaches across the EU.

However, an important element in the debate on whistleblower protection is to what degree the collaboration between journalists and whistleblowers is acknowledged and inscribed into legislation (Titland, 2019). However, the collaboration is explicitly acknowledged in the proposal. The Commission’s strong wording on the whistleblower-journalist relationship emphasises the important role whistleblowers play as journalistic sources, therefore allowing the industry to fulfil its fundamental ‘watchdog’ role. It also highlights that whistleblowers represent a ‘key element in preventing wrongdoings and protecting public interests’ and acknowledges that sufficient whistleblower protection is needed to ensure the freedom of expression. The protection of whistleblowers is even compared with the protection of journalistic sources in general.² However, the proposed directive maintains that the ‘reporting persons are generally required to use internal channels first’. Competent authorities are next in line and reporting to the public or the media is considered a measure of last resort, with a few exceptions.

Taking into consideration the fact that regulations can decide whether a whistleblower remains silent or speaks up (Titland, 2019), this article highlights that, while taking a step forward, the final wording of the Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law still raises a number of potential concerns. To construct a comprehensive insight into these issues, we begin by outlining the legislative process behind the directive, illustrating the context of the incentives that prompted the Commission to come up with a legislative proposal and the lack of consensus between the European Parliament (hereafter, the Parliament) and the Council of the European Union (hereafter, the Council). We then move on to the legal analysis of the Directive and its aims to protect individuals from suffering retaliation. Finally, we address the recurrent criticism on the issues of the sectoral approach, tiered approach, the lack of definition on follow-up and feedback, the scope of proposed protection and cultural differences, all of which could have an effect on the potential whistleblowers’ motivation to raise the alarm, thereby diminishing their role as a journalist source.

Legislative procedure for EU’s Directive on the protection of persons reporting breaches of EU law

In its Communication (European Commission, 2018a), the Commission noted that currently available whistleblower protections in the EU are fragmented across Member States. Some Member States have extensive legislation, others offer only sectoral regulation, while some are still at the stages of addressing proposals to the protection of whistleblowers. Lack of regulation and unity in one country not only has a negative impact on the functioning of EU policies, but also has a spill-over effect in other member states and across the EU as a whole. Better whistleblower protections could benefit everyone by preventing serious risks to the public interest.

Pressure on the commission to draft a legislative proposal

The need for uniform legislative standard to protect whistleblowers has been called on for years by EU bodies and NGO’s. The Parliament has been calling on the Commission since 2013 to come up with a proposal for a directive on whistleblowers. The Commission has, however, rejected those calls, referring to the EU’s lack of competence.

However, in the light of the cases of WikiLeaks founder Julian Assange, Edward Snowden and growing public pressure, the Council of Europe (2014) issued a recommendation on the protection of whistleblowers in 2014. In 2016, the Parliament called on the Commission to consider options to protect whistleblowers at the EU level. The pressure on the Commission increased in 2017 with a new call from the Parliament to present a legislative proposal by the end of the year and in this way ensure the protection of whistleblowers in the EU, extending to both the public and private sectors as well as national and European institutions. The period was furthermore marked by increased public pressure, following the murders of journalists Daphne Galizia in Malta and Jan Kuciak in Slovakia, who helped to expose corruption in their countries (Birch et al., 2015).

The Commission responded by drafting a proposal for a Directive on the protection of persons reporting on breaches of EU law. This proposal from April 2018 was based on the case law of the ECHR³ and Recommendations for the Protection of Whistleblowers, issued by the Council in 2014 (Council of Europe, 2014). Extensive public consultations confirmed that European citizens wanted to see more protections – almost all respondents (99%) agreed that irregularities should be pointed out, with the vast majority (85%) saying that workers rarely reported their concerns. However, about 80% of respondents said they did not choose to report breaches because of the fear of legal and financial consequences (Bonito et al., 2012).

The commission’s arguments for adopting the directive

In its Explanatory memorandum, the Commission presented arguments for adopting the proposal for the directive. The memorandum states that if strong protections for whistleblowers are provided, it will in many ways contribute to the functioning of the single market. In addition, fraud, corruption and professional negligence will be easier to detect and prevent. This will contribute to the proper functioning of the single market, while improving the ability of companies to detect and report professional negligence early on.

Furthermore, strong whistleblower protection in areas such as public health, environmental protection, nuclear safety and similar will subsequently contribute to the effective implementation of a series of EU policies that directly affect the lives of Europeans.

The Commission also proposed the adoption on the grounds that the protections provided for in the directive would extend to all those who were at risk of retaliation, as well as whistleblowers in cross-border cases, who currently, due to differences between national legal systems, cannot be guaranteed an effective legal protection (European Commission, 2018b).

Observations and responses to the original proposal of the directive

Position of the parliament

In May 2018, the Committee on Legal Affairs (JURI), called on a number of other Parliament committees to give their opinion on the proposal. Based on the opinions expressed, JURI finally decided on its position in November 2018 (Wahl, 2019). It expressed the need to extend the protection to persons who assist whistleblowers, including journalists, and called for the whistleblower’s right to be accompanied by a worker’s representative throughout the process. The final position included introduction of a timeframe in which the competent authority must notify the whistleblower that it received the report, the right to freely choose a reporting channel according to the whistleblower’s decision, and provision of financial, legal and psychological support for whistleblowers.

In November 2018, the JURI Committee decided to open its doors to international trialogue negotiations between the Parliament, the Commission and the Council.

Position of the council

In January 2019, the Council adopted a general agreement on the text. Compared to the original proposal of the Commission, some of the new ideas included the following:

The whistleblower should first use the organisation’s internal channels of reporting before making a public disclosure, except in special cases (e.g. in case of an obvious or imminent threat to public interest).

Competent authorities must review the report and take proper action within a period of 3 months (with the possibility of extending it to 6 months).

A precise definition of the requirements a whistleblower must satisfy in order to be able to disclose information directly to the public.

Differences in positions of the negotiating parties at the start of the trialogue

At the beginning of negotiations, the opinions of the Parliament and the Council varied considerably, in particular on the following issues:

Material and personal scope

While the Parliament sought to extend protections to the health and safety of workers, the workers’ right to information and gender equality in the workplace, the Council advocated limiting the proposed scope of protection (European Parliament, 2018).

When considering the people to whom the protection should apply, the Parliament proposed extending the protection to intermediaries, journalists, paid trainees, civil servants and former employees. It emphasised the need to act in ‘good faith’ in order to be called a whistleblower. Similarly, the Council proposed extending the protection to similar actors, with the exception of journalists and intermediaries.

Reporting channels

The institutions were initially at odds when it came to the hierarchy between the reporting channels. The Parliament advocated ending the hierarchy between reporting channels and allowing a free choice between the internal and external channels. In certain cases, it advocated addressing the public directly, inter alia, in the case of immediate danger, or detriment to public interest. However, the Council favoured a more rigorous form of the tiered proposal of the Commission, which would allow for the public to be addressed directly only if there were reasonable grounds to believe that the report would otherwise not be reviewed, that the evidence would be destroyed, or that there was a link between the perpetrator of the breach and the competent authority. The Council would also not afford the protection to whistleblowers, whose reports would be deemed less important or incidental and to those whose disclosure would threaten national security.

The institutions also disagreed whether private legal entities have a duty to set up reporting channels. The Parliament proposed that companies in the private sector with less than 250 employees are relieved of this duty. Instead, the Council merely proposed an additional 2-year deadline for fulfilment.

Anonymity and the dimension of the protection

In the original proposal, the Commission did not address the issue of anonymity, despite the fact that it was one of the most frequent proposals of parliamentary committees. The Parliament stressed the need to investigate anonymous internal reports and provide protection to an anonymous whistleblower, in case their identity was later revealed. The Council advocated for leaving the anonymous reporting regime up to the member states.

In terms of protection, the Parliament advocated extending it to intermediaries who assisted whistleblowers in the reporting process (such as colleagues and journalists), while the Council proposed extending it to third parties associated with whistleblowers, such as relatives, confidants or affiliated legal persons. The Parliament also proposed broadening the protection against retaliatory measures. On the contrary, the Council once again took a more rigorous position – it would only afford protection against legal liability if there was a reasonable belief that reporting the information was absolutely necessary to unveil breaches. Whistleblowers would bear the burden of proof – they would have to prove that they suffered damages because of the report. Such a defensive stance of the Council was not surprising as it is composed of national ministers who have a strong incentive to uphold the current national legislation.

Adoption of the Directive

Trialogue negotiations on the text ended in March 2019 with an informal agreement between the Council representatives and parliamentary negotiators. The proposal was formally adopted by the Parliament at the first reading in April 2019, with 591 MEPs voting in favour of and 29 against it. It was finally approved by the Council in October 2019 and published in the Official Journal of the European Union on 26 November 2019 under the name Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (henceforth, Directive).

Following its publication in the official journal and its entry into force, a 2-year deadline has begun, during which the member states have to implement the directive into national laws and establish reporting procedures and channels.

The Directive on whistleblowing

Objectives and structure of the Directive

Directives typically lay down objectives and results that must be achieved, while each member state decides how to transpose them into national laws (Schütze, 2018). The goal of the Directive is to enhance the enforcement of Union law and to provide minimum standards for protection of whistleblowers.

The Directive consists of 7 chapters and 29 articles. The general provisions set out the material and personal scope of the directive, definitions and general conditions of whistleblower protection. In Chapter 2, the Directive establishes a tiered reporting system and specifies the internal channels’ procedure. Chapter 3 further defines the course of the proceedings, namely external reporting channels, and the follow-up procedure. Chapter 4 defines when a whistleblower is qualified for protection when making a public disclosure, while Chapter 5 concerns the duty of confidentiality, processing of personal data and record keeping of whistleblower reports. Arguably, the most important part of the Directive is Chapter 6, entitled ‘Protection Measures’. In six comprehensive articles, it establishes the protection of whistleblowers who have reported breaches and exposed themselves to various risks. In its final provisions, the Directive specifies its application, validity and implementation.

Contents of the Directive

Material scope

Lack of proper whistleblower protection may cause serious harm to public interest in various areas. Therefore, material scope includes vital areas of competences of the EU, such as public procurement, protection of the environment, market protection and public health, and others (Article 2 of the Directive). While these areas are already subject to specific regulations under EU rules, the Directive requests better enforcement of those rules in order to ensure the full protection of whistleblowers.

It should nevertheless be noted that the Directive offers limited protection in cases of disclosures related to national security and essential security interests, in areas beyond the scope of EU competencies. It offers no protection in cases of disclosure of classified information, communication between patients and healthcare professionals, lawyers and clients, breaches of secrecy of judicial deliberation, and national rules on criminal procedure.

Personal scope

Whistleblower protection is primarily applicable to those who have the status of ‘workers’. This category includes part-time and fixed-term employment, posted workers, candidates, officials, shareholders and members of management bodies, sole proprietors, subcontractors, suppliers and others. Beyond the term ‘worker’ protection, the scope of the Directive also applies to persons not financially dependent on work-based activities who may nevertheless be subject to retaliation. These are, for example, volunteers and unpaid interns.

Protection is also granted to persons who provide information on possible breaches that have not yet taken place, but are likely to be committed. Protection of these persons is however limited to reporting of reasonable suspicions about potential breaches which are very likely to occur. Failure to limit the extent of protection might result in malicious, frivolous or fraudulent reports. Therefore, protection is provided only if they have a legitimate belief in the truth of their allegations. This way whistleblowers can be guaranteed legal protection even in cases where they inadvertently make inaccurate reports. In contrast, persons who knowingly report false information are not entitled to protection.

Reporting procedure and competent authorities

In order to effectively detect and prevent breaches of EU law and to protect whistleblowers, it is crucial that whistleblowers bring information about the breach to the authorities who are most qualified to investigate and remedy them. The Directive, therefore, requires that Member States establish appropriate internal procedures for receiving reports. The order of reporting to internal and external authorities as well as the permissibility of public disclosure was one of the main differences of opinion between the Parliament and the Council when it came to regulating the position of whistleblowers.

In order to achieve the true purpose of whistleblower protection, it is necessary to adapt the disclosure system to the characteristics of whistleblowers. Whistleblowers are in need of special legal protection, particularly if they obtain the information they report on during work-related activities and thus risk retaliatory measures. The underlying reason for their protection is precisely their economic vulnerability, as they are actually dependent on a particular person for work (Ballan, 2017; Givati, 2018). If there is no such imbalance in power, there is no need for protection from retaliation. Whistleblowers should, therefore, be able to easily and in full confidence pass the information on to competent authorities.

Internal reporting procedure

The internal reporting procedure signifies that the reporting person submits their report within the organisation. The option to use the internal channels is essential as it establishes the trust of reporting persons in organisations. Competent authorities should carefully consider the reports, provide feedback, as well as take action.

According to the Directive, the person best suited to receive reports and conduct the proceedings depends on the structure of the legal entity. The preamble of the Directive however stresses that this person should enjoy a certain degree of independence in order to avoid a conflict of interest.

As the person competent to investigate the report would become acquainted with the personal data of the whistleblower during the procedure, such a person should be professionally trained on applicable data protection rules. The Directive also requires that member states provide protection for the identity of whistleblowers, concerned persons and third parties, such as witnesses, in all stages of the process.

External reporting procedure

In the external reporting procedure, the whistleblower reports information to an external body, that is, the competent national authorities or EU bodies, offices or agencies. The Directive stipulates that whistleblowers should be able to make an informed decision on whether, how and when, to report the breaches. Competent authorities are, therefore, obliged to provide information about the available reporting channels (Article 12, Paragraph 4(a)).

The opinions of the Parliament and the Council differed on this issue whether whistleblowers must first use internal channels and report the breaches to their employer. The Directive establishes an obligation to establish internal as well as external reporting channels. However, it is up to the whistleblower to choose the most appropriate reporting channel depending on the individual circumstances of the case. This will first and foremost be relevant in cases when internal channels do not exist or when they do not function properly.

Public disclosures

The Directive does not allow direct disclosure to the media, however it sets out the conditions when that is allowed, following the model of some national whistleblower legislations. The conditions are set out alternatively. The whistleblower can turn directly to journalists in cases when, (a) no appropriate action was taken in response to his report internally or externally, (b) the person has reasonable grounds to believe that the breach may constitute an imminent or manifest danger to the public interest, and (c) external reporting has a risk of retaliation, there is a low prospect of the breach being effectively addressed or when authorities may be involved in the breach. If no appropriate action is taken following the report or there are justified circumstances, the reporting person can then disclose the information to the media or the public. It should be noted that such a limitation of whistleblower protection significantly discourages the whistleblowers to report directly to the media.

Retaliation

In order to protect whistleblowers, it is necessary to ensure the effective detection and prevention of unlawful retaliation in both internal and external reporting systems. Whistleblowers who disclose certain irregularities expose themselves to serious risks and retaliatory measures in the workplace. When retaliatory measures are unrestricted or go unpunished, they have a chilling effect on whistleblowers, which is why retaliation should be prohibited by law.

The Directive clearly states that reporting persons must be protected from any form of direct or indirect retaliation such as withholding of promotion, discrimination, harassment, or unfair treatment (Article 19). In addition to the explicit prohibition of retaliation, the Directive provides reporting persons who do suffer retaliation access to legal remedies and compensation. There are many forms of remedies: reemployment measures, compensation for actual and future financial losses, payment of medical expenses, and so on. The types of remedies will be determined in national law and should be determined on a case by case basis depending on the type of retaliation (European Commission, 2018b).

Other actions at the EU level

The Commission supports the notion that in addition to the minimum standards set out in the Directive, whistleblowers should be effectively protected by other measures as well, proposing a balanced set of measures at the EU level. The EU co-finances projects carried out by the European Centre for Press and Media Freedom as part of the measures to protect journalists and media freedom. In addition, through its anti-corruption experience-sharing programme, the Commission facilitates the exchange of good practices and finances projects that allow whistleblowers to be better informed about their rights and obligations (European Commission, 2018a).

Critical analysis of the Directive

Sectoral approach

The majority of new legislative proposals on the protection of whistleblowers that have emerged in recent years employ a horizontal (trans-sector) approach. In the case of EU-wide protections, the horizontal approach would establish harmonised rules, covering both public and private spheres across all economic sectors, excluding as few sectors as possible (typically national security). As an example, the Greens-European Free Alliance (EFA) group proposed such an approach with its draft directive in 2016, and in 2017, the Parliament called for a proposal of a horizontal whistleblower protection directive. In contrast, the EU approach to whistleblowing has hitherto been a sectoral one, tailored to specific sectors and issues, inter alia, investment products, insurance distribution, securities, statutory audits, market abuse, money laundering, credit institutions and trade secrets. The regulatory frameworks for whistleblowing vary in accordance with the sector: they are comprehensive in some (e.g. market abuse legislation) and briefly mentioned as exceptions in others, for example, the directive on trade secrets (White, 2018).

Despite a number of calls for a horizontal approach, the Commission opted for the continuation of a pre-existing sectoral approach at the EU level. The areas of the Single Market that are covered in Article 2 of the Directive are the following: public procurement; financial services, prevention of money laundering and terrorist financing; product safety; transport safety; protection of the environment; nuclear safety; food and feed safety, animal health and welfare; public health; consumer protection; protection of privacy and personal data and security of network and information systems, as well as acts and arrangements that defeat the purpose of the applicable corporate tax law.

The impact assessment of the Commission’s directive proposal offers an insight into the decision to continue the sectoral approach, contrary to the 2016 Commission’s announcement that it would assess the scope for strengthening the protection of whistleblowers horizontally. They found that the EU Treaty did not provide for a specific legal basis for the EU to regulate the legal position of whistleblowers in general. In other terms, it did not provide a basis for a horizontal approach, since freedom of expression, as listed in the Charter of Fundamental Rights of the European Union (hereafter, the Charter), cannot serve as a standalone legal basis since the extent to which whistleblowing is covered by the freedom of expression is somewhat controversial (Vandekerckhove, 2016; White, 2018).

As White (2018) points out, some member states have already faced the choice between horizontal and sectoral legislation, mostly opting and adopting the former. When considering the implementation of a horizontal approach in 2018, the Irish Government Reform Unit considered the continuation of sectoral legislation. However, they noted that the sectoral approach resulted in a number of separately protected disclosure provisions across a number of statutes, with a number of significant differences between these provisions. In detail, they concluded,

This uncoordinated approach led to an unsatisfactory patchwork of sector specific provisions which are potentially confusing in nature and which fail to provide clarity in the law relating to protected disclosures. The continuation of such a policy, even on a coordinated basis, would take considerable time to ensure a sufficiently broad sectoral coverage. Such an approach would not be in accordance with best international practice and would also militate against the generally recommended concept of a robust and comprehensive pan-sectoral approach. [. . .] Not recommended.

The International Bar Association voiced a similar opinion: ‘Whistleblower legal frameworks should not be sector-specific (subject to some qualifications) and should apply to public, private and not-for-profit sectors’ (White, 2018).

In detail, White (2018) warns that ‘the defined material scope of the proposed directive may exclude practices in hospitals, residential homes, schools, and so on unless there is a recognisable, single-market issue at stake’ covered by Article 2. Would it protect whistleblowers in hospitals and institutions dealing with vulnerable people, for example? The answer seems to be: it depends! Protection would be guaranteed only if the public health issue concerned the quality and safety of organs and substances of human origin or the quality and safety of EU medicinal products and devices. The directive will not, however, cover a whistleblower, with information on ill-treatment in an institution. Therefore, she concludes, it may be difficult for employees and members of the public to know whether a particular ‘report’ or ‘disclosure’ would justify protection against retaliation. Dourado (2018) highlights a similar issue regarding tax evasion, drawing attention to two possible concerns. In the first scenario, whistleblowers might disclose information that should be reported to the tax authorities by the undertakings themselves, presenting a risk of over-reporting, over-disclosure and an overflow of information to the tax authorities. She argues that the problem could become even more evident if an overseeing institution that would clarify questions as to the objective scope of the Directive is not established. Alternatively, whistleblowers might, in good faith, report a breach that does not fall within the realm of EU tax law, raising the question of whether the whistleblower would be protected if he or she mistakenly reported something perceived as a breach of EU tax law or an abusive practice, albeit good faith and certain objective knowledge are not necessary preconditions in the attribution of the whistleblower status and the protection that comes with it. How can the whistleblower, who can be anybody from an employee to a trainee, be able to distinguish these ‘abusive tax practices’, she asks, if there is a lack of a commonly accepted definition of what constitutes (tax) abuse in EU law.

The concerns raised by the decision to continue the sectoral approach can be partially avoided, as long as member states consider voluntarily extending the Directive to ensure a comprehensive and coherent framework at the national level when transposing the Directive, as per the Commission’s recommendation (Georgiadou, 2018). There are, however, member states which already opted for a sectorial approach, for example by only protecting whistleblowers who report about corruption (Senčur Peček, 2016). It would, therefore, make more sense to tackle this issue in the Directive itself.

Tiered approach

One of the recurrent criticisms of the Directive is the decision to establish a tiered reporting system. Despite the Commission’s strong wording on whistleblowers and journalism, the new rules only allow for internal disclosures to the legal entity concerned or direct reports to competent national authorities, as well as to relevant EU institutions, bodies, offices and agencies. Disclosing information directly to the public, including the media, is considered a measure of last resort and can only lead to awarding protection in cases where no appropriate action was taken in response to the whistleblower’s initial report, or when the whistleblower had reasonable grounds to believe that there was an imminent danger to the public interest or a risk of retaliation.

The European Federation of Journalists (EFJ, 2019) highlighted this contradictory inconsistency in an open letter, additionally signed by other media organisations as well. They underlined the fact that the declared aim of the proposed Directive is to harmonise the protection of whistleblowers throughout the EU and to ‘better detect and prevent harm to the public interest’, by protecting ‘those who act as sources for investigative journalists, helping to ensure that freedom of expression and freedom of the media are defended in Europe’. However, the EFJ argues that by opting for a complex ‘tiered approach’, the proposed Directive cannot fulfil its stated objective. In detail, they state, ‘We are concerned that such layered administrative burdens which fall on the whistleblower would unavoidably have a deterrent effect on the latter and would de facto act as an obstacle for the whistleblower to report to the media’. The expressed concern is in line with the findings of Loyens and Vandekerckhove (2018) that the strict conditions tied to external whistleblowing can severely affect the decision of potential whistleblowers when reporting their concerns. The EFJ (2019) goes on to argue that this contradiction would not only have a negative impact on media freedom in Europe, but also on the citizens’ fundamental right to receive and impart information, as guaranteed by the Charter. Similarly, Boot (2019) points out that, although the public whistleblowing of classified information has been the subject of controversy, it has also become one of our main sources of information concerning government wrongdoing. Given this vital social service provided by whistleblowers, many argue that whistleblowers should enjoy some measure of legal protection, otherwise a chilling effect might deter potential whistleblowers from disclosing wrongdoings, leaving the public ignorant of abuse of power and human rights violations.

The EFJ (2019) also forewarns that this approach could substantially undermine the watchdog and scrutiny roles of the media, since whistleblowers are prevented from turning to journalists. Once again, it emphasises the crucial role of investigative journalists, acting as filters and fact-checkers, and points out that the editorial control and responsibility of the media offers an additional safeguard against inappropriate public disclosure.

Follow-up

White (2018) raises another point worthy of discussion: the issue of ‘follow up’. For cases where internal channels do not exist or are not expected to work, such as where management is involved in the wrongdoing or where there has been no follow-up of the internal report, the Directive obliges member states to create a secure external reporting channel, which will need to ensure confidentiality, and designate a competent authority to follow-up and provide feedback to the whistleblower within 3–6 months. White (2018) notes that the Directive, however, ‘does not require competent authorities to investigate but rather to “follow up”’. She notes that ‘this does not have quite the same bite as a duty to investigate and take the necessary remedial measures’. The term ‘follow up’ (at least in English) tends to suggest that one is waiting for someone else to act (White, 2018). Hence, it is not clear why the term ‘investigate’ was not used instead. What is more, the precise nature of follow-up and feedback will be left to the competent authorities within member states. There is a possibility that they might turn a blind eye due to the lack of clarity, resulting in the established system failing to address the reported breaches effectively (White, 2018).

This could decrease the overall effectiveness of the system, as Near and Jensen (1983) effectively illustrated through a study of 72 respondents who blew the whistle on their employers. They found that whistleblowers consider the process to be more effective when their cases are determined to have merit and when they feel they had succeeded in changing an organisation’s attitudes, whereas retaliation had little influence on their perceived success of whistleblowing activities. And without universal trust in the system, whistleblowers might not be motivated to blow the whistle (White, 2018).

The scope of the proposed protection

In addition to the aforementioned uncertainty about the eligibility for protection that arises from the decision for the continuation of the sectoral approach, the proposed Directive raises a number of related dilemmas as well.

The first one, also raised by White (2018), stems from the fact that the Directive includes the protection of the EU’s financial interests, including revenues, expenditures and assets covered by the budget of the EU and those covered by the budgets of the institutions, bodies, offices and agencies and the budgets managed and monitored by them. The European Court of Auditors (2018) has already voiced a similar concern about the complexity of the material scope and the implications that might have in practice for the effective protection of whistleblowers. The auditors warn that if member states do not consider voluntarily extending the Directive to ensure a comprehensive and coherent framework at the national level as per the Commission’s recommendation, potential whistleblowers would be uncertain about whether the breach they were planning to report is listed in the annex so that they could benefit from the protection afforded by the directive and the national transposing legislation. They would be faced with making complex assessments requiring expert-level knowledge that they might not possess. This complexity could reduce the legal certainty for potential whistleblowers, deterring them from reporting on detected breaches. In addition, White (2018) remarks that EU budget funding is often mixed with national, regional or private funding, possibly leading to a confusing legal situation:

Member States may decide to apply one whistleblower regime to the national part of funding in accordance with existing national legislation (if any exists), whilst the EU whistleblowing regime would apply to only the EU part of the funding. Yet other Member States may consider the whistleblowing directive to apply to the entire funding. (White, 2018)

Another observation, offered by Mercadé (2019), is that the protection given to whistleblowers is not absolute. While the Directive defines retaliation as an unjustified detriment to the whistleblower, it does not shield the whistleblower against any other properly justified measure imposed by the employer, for example, due to a restructuring.

Titland (2019) sheds light upon one more matter: the issue of disclosing material in a proportionate manner is not clarified in the legislative proposal. He illustrates an issue which came up during the LuxLeaks financial scandal. Raphaël Halet was a whistleblower who disclosed sensitive information on tax avoidance schemes in Luxembourg and elsewhere. During the trial in Luxembourg in 2016, he was however not treated as a whistleblower since he disclosed tax agreements of the same type as those already previously leaked by Antoine Deltour. Despite the fact that he added more material to the case, the material was not substantially new. Therefore, his action was not judged to be proportionate to the damage inflicted on Luxembourg, PwC and the companies granted the tax agreements. While there is a non-exhaustive list of issues considered to be whistleblower worthy in the EU Directive, there are only few further details on additional requirements. One further requirement is that the whistleblower must have reasonable grounds to believe that the information reported was true at the time of reporting (honest errors do not disqualify you from protection), but there is no mention of the novelty criteria or one leak’s relation to another. Titland (2019) also draws attention to the fact that in the LuxLeaks case, one could hardly blame Halet for not knowing whether his leak represented something new, as he did not have access to Deltour’s documents. This unclarity might cause uncertainty for future whistleblowers.

Cultural differences

Past research has found cultural orientation to be one of the determinants of an individual’s willingness to disclose perceived breaches of law. Park et al. (2008) found that the relationship between cultural orientation and views on whistleblowing cannot be generalised across countries, suggesting that organisational systems for dealing with an employee’s response to wrongdoing should be based on an understanding of the impact of nationality and cultural orientation on employees preferred ways to blow the whistle. A study on curbing public sector corruption in post-Communist Europe, specifically in Ukraine, Bulgaria, Slovakia and Czech Republic, found that 19% of the general public and 34% of street-level officials considered the encouragement of officials to expose wrongdoing to be ‘unnecessary’ or ‘actually harmful’. The resistance was interpreted as a reflection of the bitter experience of informing under an externally imposed communist regime (Vandekerckhove et al., 2014). The idea of an EU-wide legislative solution therefore raises the question of how the directive can simultaneously provide sufficient protection for whistleblowers, yet leave member states with enough freedom to take into account the national, organisational, professional and political culture of their region.

Conclusion

The quality of investigative journalism is of vital importance for the media’s watchdog role in a modern society. In this respect, whistleblowers play an important role in development of quality journalist stories which deepen the pool of public knowledge and cultivate informed media consumers. The protection of whistleblowing is, therefore, of crucial importance. The recent EU Directive however opens various new dilemmas. It does not always promote the quality of journalism and the media landscape.

We found that the watchdog role of journalists is undermined by the new regulation since whistleblowers are discouraged from turning directly to media. What is more, the scope of follow-up activities to whistleblowing reports is mostly left to the relevant authorities across member states. There is no clear assurance that there would be any results or steps towards solving an irregularity, thereby leaving the case ‘open’. Moreover, there is no absolute protection for whistleblowers and there is room for certain sanctions that could be employed for whistleblowing.

More importantly, that differences between ‘old’ and ‘new’ democracies, sometimes described as cultural differences, also carry the issues of dealing with the problem according to the domestic customs and norms. In the name of protecting the investigative role of journalism, all these crucial dilemmas should have been solved during the trialogue negotiations between the Commission, the Parliament and the Council. Future amendments of regulation are hard to achieve after the public interest is already damaged and the diminished role of whistleblowers is seen as the status quo. It is, therefore, up to the Member States to extend the scope of whistleblower protection during the implementation process of the EU Directive.

Footnotes

Author contributions

This contribution was in part inspired by the project WHISTLE which was carried as a part of ‘Creative path to knowledge 2017-2020’ Programme which was funded by the Republic of Slovenia and the European Social Fund and in part by the Whistleblowing open data impact. An implementation and impact assessment (WOODIe) Project which is funded by the European Union’s ISF Police Action Grant.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Suzana Žilič Fišer

Notes

References

Ballan

(2017) Protecting whistleblowing (and not just whistleblowers). Michigan Law Review 116(3): 475–500.

‘Becker v Norway’ (2017) Case no. 21272/12. European Court of Human Rights.

Birch

Dyer

Pasos

, et al. (2015) The State of Whistleblower & Journalist Protections Globally: A Customary Legal Analysis of Representative Cases. Washington, DC: American University School of International Service.

Bonito

Titus

Greene

, et al. (2012) Preparing whistleblowers for reporting research misconduct. Accountability in Research 19(5): 308–328.

Boot

(2019) The feasibility of a public interest defense for whistleblowing. Law and Philosophy 39: 1–34.

‘Bucur and Tomav Romania’ (2013) Case no. 40238/02. European Court of Human Rights.

Carson

Farhall

(2018) Understanding collaborative investigative journalism in a ‘post-truth’ age. Journalism Studies 19(13): 1899–1911.

Coleman

(2019) How has the fight for anonymity and privacy advanced since Snowden’s whistle-blowing? Media, Culture & Society 41(4): 565–571.

Council of Europe (2014) Recommendation Cm/rec (2014)7 of the Committee of Ministers to Member States on the Protection of Whistleblowers. Available at: https://rm.coe.int/16807096c7 (accessed 17 December 2019).

10.

De Burgh

(2000) Investigative Journalism: Context and Practice. London: Routledge.

11.

Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law. Official Journal of the European Union.

12.

Dourado

(2018) Debate: whistle-blowers in tax matters: not public enemies. Intertax 46(5): 422–426.

13.

Eldridge

(2019) Hero or anti-hero? Journalists and their stories. Journalism Practice 13(8): 890–894.

14.

European Commission (2018a) Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52018DC0214&from=SL (accessed 17 December 2019).

15.

European Commission (2018b) Proposal for a Directive of the European Parliament and the Council (Explanatory Memorandum). Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52018PC0218&from=SL (accessed 17 December 2019).

16.

European Court of Auditors (2018) Opinion No 4/2018 Concerning the Proposal for a Directive of the European Parliament and of the Council on the Protection of Persons Reporting on Breaches of Union Law, 2018/C 405/01. Available at: https://www.eca.europa.eu/en/Pages/DocItem.aspx?did=47282 (accessed 17 December 2019).

17.

European Federation of Journalists (2019) Open Letter to European Institutions: Public Reporting Must Be a Safe Option for Whistleblowers. Available at: https://europeanjournalists.org/blog/2019/01/17/open-letter-to-european-institutions-public-reporting-must-be-a-safe-option-for-whistleblowers-2/ (accessed 17 December 2019).

18.

European Parliament (2018) Draft European Parliament Legislative Resolution on the Proposal for a Directive of the European Parliament and of the Council on the Protection of Persons Reporting on Breaches of Union Law. Available at: http://www.europarl.europa.eu/doceo/document/A-8-2018-0398_EN.html (accessed 17 December 2019).

19.

Georgiadou

(2018) The European Commission’s proposal for strengthening whistleblower protection. Eucrim: The European Criminal Law Associations’ Forum 3(3): 166–169.

20.

Givati

(2018) Of snitches and riches: optimal IRS and SEC whistleblower rewards. Harvard Journal on Legislation 55(1): 105–142.

21.

‘Goodwin v United Kingdom’ (1996) Case no. 17488/90. European Court of Human Rights.

22.

‘Guja v Moldova’ (2008) Case no. 14277/04. European Court of Human Rights.

23.

‘Heinisch v Germany’ (2011) Case no. 28274/08. European Court of Human Rights.

24.

Jordan

(2019) Does online anonymity undermine the sense of personal responsibility? Media, Culture & Society 41(4): 572–577.

25.

Loyens

Vandekerckhove

(2018) Whistleblowing from an international perspective: a comparative analysis of institutional arrangements. Administrative Sciences 8(3): 30–46.

26.

‘Marchenko v Ukraine’ (2009) Case no. 4063/04. European Court of Human Rights.

27.

Mercadé

(2019) Enhancing compliance, accountability and transparency through whistleblowers. Financier Worldwide, June. Available at: https://www.financierworldwide.com/enhancing-compliance-accountability-and-transparency-through-whistleblowers#.XXdzpfAzbIU (accessed 18 December 2019).

28.

Near

Jensen

(1983) The whistleblowing process: retaliation and perceived effectiveness. Work and Occupations 10(1): 3–28.

29.

‘Nordisk Film & TV A/S v. Denmark’ (2005) Case no. 40485/02. European Court of Human Rights.

30.

OECD (2016) Committing to Effective Whistleblower Protection. Available at: https://www.oecd.org/corporate/committing-to-effective-whistleblower-protection-9789264252639-en.htm (accessed 18 December 2019).

31.

Park

Blenkinsopp

Oktem

, et al. (2008) Cultural orientation and attitudes toward different forms of whistleblowing: a comparison of South Korea, Turkey, and the UK. Journal of Business Ethics 82(4): 929–939.

32.

‘Sanoma Uitgevers B.V. v Netherlands’ (2010) Case no. 38224/03. European Court of Human Rights.

33.

Schütze

(2018) An Introduction to European Law. Cambridge: Cambridge University Press.

34.

Senčur Peček

(2016) Protection of persons reporting corruption and other whistleblowers in the Republic of Slovenia. In: Thüsing

Forst

(eds) Whistleblowing – A Comparative Study. London: Springer, pp. 263–278.

35.

Titland

(2019) It’s all in the game: journalism, whistleblowing and democracy under the rules of the global economy. In: Krøvel

Thowsen

(eds) Making Transparency Possible: An Interdisciplinary Dialogue. Oslo: Cappelen Damm Akademisk, pp. 181–208.

36.

Transparency International (2013) International Principles for Whistleblower Legislation. Available at: https://www.transparency.org/whatwedo/publication/international_principles_for_whistleblower_legislation (accessed 18 December 2019).

37.

Vandekerckhove

(2016) Freedom of expression as the ‘broken promise’ of whistleblower protection. La Revue des Droits de l’Homme 10: 1–17.

38.

Vandekerckhove

Uys

Rehg

, et al. (2014) Understandings of whistleblowing: dilemmas of societal culture. International Handbook on Whistleblowing Research 3: 37–70.

39.

Wahl

(2019) EP committee vote on whistleblower directive. Eucrim: The European Criminal Law Associations Forum. Available at: https://eucrim.eu/news/ep-committee-vote-whistleblower-directive/ (accessed 22 December 2019).

40.

White

(2018) A matter of life & death: whistleblowing legislation in the EU. Eucrim: The European Criminal Law Associations’ Forum 3: 170–177.

41.

Zajácz

(2013) WikiLeaks and the problem of anonymity: a network control perspective. Media, Culture & Society 35(4): 489–505.