European protection for whistleblowers is finally close to seeing the light of day but could easily prove to be insufficient although the importance of their role in revealing public interest information has repeatedly been confirmed in recent years in such cases as the Panama Papers, LuxLeaks and France’s Mediator scandal.
“Protecting whistleblowers when they enable the public to be informed through the media is essential,”said Julie Majerczak, RSF’s representative to the European institutions. “The attitude of the Council of the EU, in which each member state’s government has a seat, is to try to limit the ability of whistleblowers to talk directly to journalists as much as possible. This violates the freedom to inform and the public’s right to information in the public interest.”
The draft of the directive that the Council adopted on 25 January allows a whistleblower to report a breach of EU law directly to the media only when there is an imminent or manifest danger to the public interest, or a risk of irreversible damage, or when the authority concerned is colluding with the perpetrator of the breach.
The Council’s extremely restrictive approach is all the more incomprehensible given that a whistleblower’s decision to go through journalists, who are in a position to check out the information they receive, should rather be seen as a sign of good faith on the whistleblower’s part.
As the Council and European Parliament continue the negotiations on a final version that they began yesterday, RSF urges the Council to open its eyes to the merits of the draft that the members of the European Parliament adopted.
Their version allows whistleblowers to go directly to the media not only when there is an imminent or manifest danger but also when the public interest is being harmed or in such circumstances as collusion or misconduct on the part of relevant authorities or a risk of evidence being destroyed. Furthermore, their list of circumstances is not exhaustive.
It is also essential that the directive’s protection should cover persons, such as journalists, who facilitate the reporting of breaches, as the MEPs are demanding.
Moreover, RSF is concerned about the Council’s very restrictive definition of the breaches that whistleblowers may report. If the directive is to provide extensive protection, it should cover all acts that threaten or harm the public interest. But the “breaches” covered by the Council’s version are limited to acts or omissions that are unlawful under EU law.
RSF urges the Council to accept the position taken by the MEPs in their version, which also covers “abuse of law,” meaning acts or omissions that may not appear unlawful in formal terms but which defeat the object or the purpose pursued by EU law. The directive’s scope should also be as broad as possible with regard to taxes, and should not be limited to corporate taxation.
“Final adoption of the directive before the European elections is essential, but the price should not be inadequate protection for whistleblowers or restrictions on the right to information,” Majerczak added.