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What needs changing in the EU’s draft whistleblower directive

Courage welcomes a strong set of proposals and recommends changes regarding national security cases, protecting anonymity and letting whistleblowers choose who they talk to

In April this year, the European Commission published the text of its draft whistleblower directive. This was something that campaigners had been working towards for years, partly due to the galvanising impact of the LuxLeaks revelations and the opposition to the European Trade Secrets Directive, both of which we have followed closely at Courage.

On the whole, the proposals are stronger than had been expected and there’s a lot in them that we can be wholly positive about. We are particularly happy to see that the draft Directive treats disclosures about privacy, potential data breaches and network security as whistleblowing, a clarification that is long overdue.

At the same time, we think there are some aspects of the draft Directive that could be improved and we’ve just submitted our explanation to the European Commission.

Here are the changes we would like to see:

At present, the draft whistleblower directive does nothing for national security whistleblowers, whose disclosures often put themselves at great risk. For example, we’ve seen in the past few days how bad things can get for whistleblowers like Reality Winner, and those in other countries also face the potential of severe penalties. Classification should never be used as a reason for covering up evidence of human rights abuses and, while cases like Thomas Drake’s show that internal channels by themselves are not the answer, we think the EU should follow the Council of Europe in getting member states to acknowledge that intelligence service personnel with concerns need to have somewhere to go to.

One of the most important protections a whistleblower can have is the ability to remain anonymous. This isn’t mentioned in the European Commission draft at the moment and it needs to be. At the very least, we think that the draft needs to ensure that whistleblowing reports that are submitted anonymously are treated as seriously as those submitted by other means.

A serious problem with the draft Directive is that it imposes too many restrictions on who a whistleblower can disclose to. Experience shows that, given the choice, the overwhelming majority of whistleblowers prefer to make their reports internally. We do not think that the minority whose complaints need to go straight to an external regulator, or the press, should be limited in that choice. In their public statements around the Directive, members of the European Commission have been clear that it is their intention to make sure the next Antoine Deltour receives proper protection and isn’t dragged through the courts. Unfortunately, we do not think the text achieves this aim at present.

Finally, while we agree that the fundamental rights of people who are the subject of whistleblowing disclosures need to be respected, there are a couple of provisions in the draft Directive that threaten to go too far in the other direction. We are concerned that these could dissuade future whistleblowers from coming forward or present new impediments to public interest reporting, all of which would completely undermine the aims of these proposals.

What next?

The draft Directive is currently being considered by several committees of the European Parliament, which will be in a position to suggest changes and put forward formal amendments to be considered by the Parliament as a whole. We think it is likely that amendments will tackle many of the issues we are concerned about and we will keep you updated as things progress.

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