July 12th, 2018 the SecureDrop Community answered the consultation
The Commission would like to hear your views.
Once the Commission has decided on a legislative proposal and put it forward for adoption by the EU Parliament and Council, you can respond to the proposal and accompanying impact assessment. The feedback period will close 8 weeks after the proposal is made available in all EU languages. You can choose between having your feedback:
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Once submitted, your feedback will be immediately published on this site. We’ll review published feedback to check it complies with the rules for feedback and suggestions. If it doesn’t, it will be removed. You will not receive an individual response, but the Commission will present a summary of the feedback received to the Parliament and Council so that your views can be part of the legislative debate.
It would be super nice if the SecureDrop community could answer to the consultation by suggesting that the directive encourages states to protect whistleblowers leaking classified documents. The commission cannot impose obligations to the member states on matters of national security. But it can and should encourage them. The Tshwane Principles should help with the rationale.
@veronika.nad has experience and may have advices on how to properly write such a reply.
What do you think?
Here is a tentative response to the consultation. It is in wiki mode, meaning anyone can modify it (history is preserved). What do you think? The deadline is in two days
The proposed draft Directive on the protection of whistleblowers is an important step into the right direction. Not only does it recognize the necessity of granting support to those who take the courage to report wrongdoing in the public interest. Whistleblowers have in the past revealed precious details about misconduct concerning all European citizens, while paying a high price for these actions.
It also constitutes an overdue signal to counter tendencies of declining freedom of expression all across Europe. These manifests themselves in the introduction of legislation limiting media freedom in several EU member states, as well as in the murder of two European investigative journalists within the last 9 months. The establishment of minimum standards to protect whistleblowers thus also needs to be seen within the context of a much-needed reaffirmation that values such as press freedom and freedom of expression are existential elements of our society.
However, we would like to note that the current proposal features some significant gaps, which we would recommend to address:
The draft does not touch on the matter of anonymous disclosures. To make sure that whistleblowers, who, for whatever reason, prefer to remain anonymous while making a report, are still protected when their identity is later revealed, the draft Directive should explicitly refer to this possibility.
Strict tiered system
Currently, the draft foresees unnecessary thresholds for external reporting. Mandatory internal reporting in practice equals an obstruction of justice, as it provides a large enough window to cover up wrongdoing. This also puts whistleblowers at unnecessary risk, who in these cases are not eligible for protection any longer. Furthermore, the exceptions stated in the draft under which direct external reporting is allowed puts, in practice, the burden of proof upon the whistleblower.
The penalization of “malicious” and “vexatious” disclosures can have a significant chilling effect. Furthermore, it introduces a motivations test, which otherwise was explicitly not foreseen in the draft. In addition, defamation and slander are already considered as offenses across the European member states; an additional penalty layer is thus unnecessary. We recommend to refrain from adding these provisions.
Under the current Directive proposal, a European Edward Snowden would not be protected. At the same time, an increasing number of laws introduced in the name of terror prevention and national security contribute in fact to the unnecessary and undesirable clipping of citizens’ rights. While we understand that the European Union does not have a mandate to regulate matters of national security, we still suggest to introduce an recommendation for Member States to regulate this area. Alternatively, the Directive could foresee the reporting of consequences of activities, which are classified (instead of the classified information itself).
We hope that our considerations can be taken into account, and would be very happy to provide you with further information.
Maybe we could s/obligation/recommendation/? Otherwise it will be quickly dismissed because such an obligation is not grounded in any actual mandate.
@veronika.nad thanks for noticing that the deadline for the submissions was extended to July 13th! That gives us the opportunity get a consensus on submit this response in the name of the SecureDrop Community Our consensus period has usually been one week.
I edited the proposed answer with the suggested modification. If there is consensus that the answer to the consultation is good, I will submit it in a week from now.
It looks like there is no objection so … let’s do this