RSF wants the creation of legislation that provides effective protection for those who, in a public-spirited gesture and often at risk to themselves, leak information that serves the general interest. This legislation must establish a protective mechanism for all whistleblowers, regardless of the domain concerned by the revelations.
Leaks about activities threatening the general interest
A whistleblower must be protected for all revelations about activities that threaten the general interest, including not only illegal activities but also activities that are not strictly illegal. If the whistleblower’s protection depended on the illegal nature of the activities denounced then Antoine Deltour, the Luxleaks whistleblower, would have no right to protection.
Furthermore, the law should not stipulate that whistleblowers may only leak about a restrictively listed series of domains (such as the environment, public health, public safety and so on). Leaks about any threat or danger to the general interest must be possible and must give rise to a right to protection.
Leaks by any member of society
Whistleblower protective mechanisms must be available to private-sector employees as well as to public-sector employees and to members of the armed forces and intelligence services.
However, these mechanisms must also be available to any person who leak an information that serves the general interest, and not only in the framework of an employment relationship.
Leaking in good faith
It is essential that whistleblowers act in good faith in order to enjoy the right to protection. The information must be leaked with the aim of serving the general interest and without any illegal, unethical or mercenary objective. Those seeking to make money from their leaks or those seeking personal advantage must not be able to claim protection.
Good faith on the part of whistleblowers also implies that they must have reasonable grounds for thinking that the leaked information is true. However, if it subsequently turns out that the information was erroneous, this cannot be held against whistleblowers who acted in good faith and does not detract from their right to protection.
Leaking to journalists
In RSF’s view, whistleblowers must be able to leak straight to journalists. If the leaked information concerns the general interest, then the general public by definition has an interest in knowing about it.
Leaking to journalists should not be regarded as a final recourse to be used only after all other channels (including reporting to superiors, using internal alert mechanisms and alerting administrative or judicial authorities) have proved ineffective.
The requirement that whistleblowers must first try to use internal or judicial channels should, in RSF’s view, be strictly limited to certain defined sectors, for example, those involving defence and national security.
RSF maintains that leaking information to journalists should even be encouraged in cases of violations of human rights and fundamental freedoms, and in cases in which the urgency of informing the public requires going directly to a journalist.
Right of protection for whistleblowers
Whistleblowers must be protected. Leaking information should not be grounds for prosecution or dismissal. Whistleblowers who are dismissed must be able to seek an injunction from an industrial or professional tribunal (or administrative tribunal in the case of state employees) in order to block their dismissal. Those who take punitive measures against whistleblowers should be obliged to prove that their grounds for doing so was something other than the act of whistleblowing.
It is essential that the identity of whistleblowers is kept secret. Their identity should be revealed only with their consent or if this is the only way to avoid grave threats to the public interest.
Whistleblowers should not have to prove their good faith in order to obtain protection. It is the employers who claim lack of good faith as grounds for sanctions against whistleblowers who should have to prove the lack of good faith.
Similarly, if it is alleged that a whistleblower did not previously use obligatory internal channels and if the whistleblower responds that he or she believed the channels to be ineffective or dangerous, the burden of proof should lie with those making the allegations. They should have to prove that this belief was not the reason for the failure to use these channels.
Finally, specific penal sanctions must be envisaged for those responsible for reprisals against a whistleblower.
The flaws in the Sapin 2 Bill
The French government’s Sapin 2 Bill has the virtue of legitimizing the role of whistleblowers and providing for their protection. The bill contains major advances: the creation of mechanisms that offer anonymity and protection, the possibility of material assistance for whistleblowers, and penal sanctions for those who try to obstruct whistleblowers.
Despite these advances, RSF deplores three major flaws in the bill:
- A restrictive definition of the domains in which information may be leaked. This flaw radically limits the bill’s scope and merits. The bill says that, for the whistleblower to have a right to protection, the leak must be about “a crime or offence, a grave breach of the law or regulations, or activities posing grave risks or harm for the environment or for public health or security.” RSF urges senators to amend the definition of whistleblowers and to allow protection for all leaks that are in the general interest.
- A ban on leaks involving national defence secrets. As the Snowden affair has shown, the leaking of such information may be of great importance to the general interest and may expose the whistleblower to considerable risks. Specific provision must be made for leaks involving national security, provision that maintains the possibility of protection for the whistleblower.
- A restriction on the possibility of leaking directly to a journalist. This possibility should be encouraged if the leak is in the general interest.