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.