Alright, so what’s going on?
The Luxleaks trial, in conjunction with other shocking revelations like the Panama Papers and the NSA leak of Edward Snowden, has stirred the public debate about whistleblower protection. Currently, there are very serious issues when it comes to protecting the people who reveal information in servitude of the public interest.
More often than not these people are left to fend for themselves. Recent leaks, like the Panama Papers, have once again emphasized the vital role whistleblowers play in serving the public interest and increasing transparency, and – more often than not – these leaks function as a catalyst for legislative progress. This chain of events has, once again, unearthed a problem that has been in existence for years.
It’s not news, …really it isn’t
Today, there is no solid nor common basis of legislation that defines how to adequately protect and support whistleblowers in Europe. This has massive repercussions for the people involved, it simply depends on the Member State what kind of protection – or prosecution – they receive.
For over a decade, the European Parliament has implored the Commission to take action and tackle this issue. Believe it or not, the European Parliament has already requested a proposal from the Commission on four different occasions. Fifth time’s the charm? We certainly hope so as recent treatment and subsequent convictions of whistleblowers make it an imperative to seize the moment and take action. This, in tandem with the Trade Secrets directive – we’ll get to that in a second – carries the real risk of further weakening the position of whistleblowers.
It is long overdue. Now, more than ever, is time to tackle the issue and create a common European legislative basis in order to guarantee that the people who reveal information in service of the public interest receive the protection they require.
So how can we handle it?
We believe that there should be robust provisions to protect whistleblowers across the European Union. It is simply unacceptable that, in modern day Europe, there is no common legislation on this. The European Parliament has already asked the Commission for a legislative proposal, seeing as the basis for such a framework is clearly present in the European Treaties.
This frame is vital for protecting and promoting the role that whistle-blowers play in ensuring transparency, allowing journalistic investigation and achieving accountability. The sheer myriad of examples of mass leaks that have led to the revelation of abuses like illegal mass surveillance, tax avoidance on an industrial scale and so on, further emphasize the need for this.
By launching this directive, the Greens in the European Parliament are aiming to gather broad cross-party support in the European Parliament so the Commission can use this work and build upon it. Furthermore, we also hope to continue to generate debates on the national level about the need to protect public interest disclosures.
Of course, it can’t always be simple
Allow me to introduce, the Trade Secrets Directive.
This Directive has recently been approved in early April and, while the base idea may seem logical, it has far-reaching implications for potential whistleblowers. Furthermore, it may even further discourage them from revealing information due to fear of what may happen to them.
All European companies will now have the same minimum level of protection against industrial espionage across the European Union, sounds reasonable right? Not so much when you look at the possible implications for workers due to how trade secrets are actually handled. All information can now be handled as a trade secret. This can include things such as contracts with governments or malpractices like we’ve seen in the Volkswagen scandal, , anything really.
Furthermore, the new Trade Secrets Directive places on the whistleblower the burden of proof. This means that the responsibility for proving that the information they’ve revealed is in the public interest and not commercially motivated lies with them.
It places an enormous legal and financial burden on the whistleblower in question, which in turn discourages people from revealing such information. This is exactly why we need a Whistleblower Protection Directive in order to provide a common basis of protection. Without it, chances are that information in the public interest – like the information revealed in LuxLeaks – will remain hidden.
We need it today, more than ever. Especially in light of the directive on Trade Secrets. This directive is sculpted in such a way that it threatens the possibility of future disclosures, as it treats practically all secretive business information as a trade secret.
Alright, but now what?
Simple, we up the ante and continue to put pressure.
The European Commission was supposed to propose legislation by June 2016, so you can imagine people are starting to twitch in their seats and are becoming impatient. Through the means of two different committees and one cross-party intergroup, MEPs are continuing the pressure on the Commission.
The Parliament’s Legal Affairs Committee is due to draft a legislative own-initiative report, which will call on the Commission to come up with a concrete proposal for whistleblower protection. This kind of report would also include details on the specific legal bases proposed, the scope of the protection that should be granted and the key principles that should be implemented. In tandem with the Legal Affairs Committee, the Budgetary Control Committee will draft a report on the need for this protection in light of the spending of EU funds.
On a cross-party level, the European Parliament Inter-Group on Integrity, Transparency, Corruption and Organised Crime, which consists of members of almost all political groups in Parliament have chosen whistle-blower protection as one of their strategic priorities. They will organise a conference on the matter in autumn.
We can’t do it alone though and that is exactly why we need you as well. We’ve launched a public consultation, where we want to hear your thoughts and input on the matter. You can find the consultation by clicking here. The consultation is open until September 1st, 2016.
Want a quick fix on the contents of the Whistleblower Protection Directive? You can find our podcast with MEP Sven Giegold here, or a written summary of the Directive here. If you’d like to know more about the topic at large you can find find the FAQ here.