Sometimes portrayed as heroes, sometimes as traitors, the whistleblowers who expose to the world wrongdoings are omnipresent in the news. The recent Luxleaks trial illustrates perfectly the ambivalence of the politicians about whistleblowers, claiming the need to protect them while trying to push rules to maintain a certain level of secret in the internal affairs.
Antoine Deltour and Raphael Halet used to work for the auditic firm Pwc, witnesses of dishonest practices in their company, they had decided to report it in the press. The scandal they brought to light is known as ‘Luxleaks’ but the current trial is not the one of the corrupt persons exposed but the one of the two whistleblowers, in the Court of Appeal. They have been first condemned to suspended prison sentences.
But aren’t they act for the public interest? For the European free alliance of the Greens in the European Parliament, no doubt about it. With strong messages, such as “Showing moral courage is not a crime, the political party proves its commitment for the protection of whistleblowers. Indeed, on their website, people can read that “on the contrary, unveiling illegitimate practices has to be protected and not sanctioned.”
Its initiative to make it concrete is the platform “Euleaks”, launched in September 2016. According to the same website, EUleaks is “a European platform where you can submit information in a highly secure and anonymous way”. At the same time, the Greens try to force countries to adopt “comprehensive legislation to protect whistleblowers based on prevailing international standards, including those developed by Transparency International and by the Council of Europe.”
The objective of the Euleaks platform is to provide a secure space for everybody to report anonymously wrong doings within the European Union. The Green MEPs assure that they act for the public interest and that it was their duty because no one else wanted to do it.
However, other websites exist, they come from Vice or the Guardian, that is to say, media. Indeed, it may be questionable, even if the system is technically safe (it uses the browser “Tor”, a system which makes the tracking of connections very difficult), why people should trust a political group more than journalists?
During the official press conference of the Greens for the launching of Euleaks, the Der Standard journalist Thomas Mayer highlighted this issue: “Parties have, of course, prejudices about information they receive, they are not completely neutral”. The answer came from Sven Giegold who insisted to say that whistleblowers do have the choice and that EUleaks already receive leaked information. He explained that “it is because they know that we will be firm with institutions, we have expertise and for instance, the three commissions about fiscal rules would not have been organized without the Green lobby.”
To restrict the enthusiasm of the alliance, the EPP MEP Dariusz Rosati said to the Euranetplus website that there is a limit to the leaks, and this limit is the national laws on trade secrets and sensitive information.
This is the current tricky point about whistleblowers : is the public interest heavier than the trade secret on the Justice scale?
The question is more newsworthy than ever because this summer the European Parliament adopted a directive for trade secrets. One of the objectives is to “stop the unlawful use and further disclosure of misappropriated trade secrets” to guarantee a “common, clear and balanced legal framework which discourages unfair competition” within the internal market. With this directive, the EU wants to protect its companies from industrial espionage.
All leaked information will be regarded as a violation of the trade secret.
There is a problem however, if someone is the witness of abnormal activities, will this person be sanctioned? To reassure the citizens, the legislators have added a ‘safeguard’ for “those who, acting in the public interest, disclose a trade secret for the purpose of revealing a misconduct, wrongdoing or illegal activity.” Wrongdoing, the definition may be vague. Even after two deferments to clarify the notion, the term seems to be at the free interpretation of every one. The judges will have to examine each case with a lot of caution.
In the Juncker Commission, also, it is difficult to know in which direction is the scale tipping. According to the spokesperson of the president of the European Commission Jean-Claude Juncker, the Commission is strict about wrongdoings. “We have strict ethics rules in place for all staff and it is common sense to recall those rules from time to time. Therefore, we are planning to raise awareness, once again through seminars, training sessions and conferences” “the Commission’s staff is bound by the principles of loyalty, impartiality and act for the public good”, she said.
But what happen if someone, a civil servant for instance, is witness of a negligence of these ethic rules? For the journalist of the website Euractiv, Jorge Valero, to reveal the wrongdoing is not the option Juncker wants to choose. According to him, the president of the Commission wants to “avoid political and reputational damage” by what the journalist calls “an anti-leaks strategy”. The information might have leaked and his spokesperson doesn’t want to comment.
The reputation of the European institutions is already damaged, the scandals seem to follow one after another. But even before the recent conflicts of interest revelation, the trust of European citizens was very low as presented the Eurobarometer in 2015. To the question “for each of the following institutions, tell if you tend to trust it or not, only 40% of the European citizens have replied positively.
To accuse the whistleblowers is like to blaming the TV weatherman for the rain, both are simply the ones who transmit the information.
In this trouble context, people can have the impression than leaking information is not harmless. This is the result of the Transparency International EU survey “People and corruption, Europe and Asia” focusing on European countries and Turkey. According to this movement whom a satellite is based in Brussels and only deals with EU affairs, almost a third of people admitted don’t report corruption because they fear the consequences. Two in five people think that those who do report on corruption suffer retaliation.
This is the reason why freedom of press such as Reporters without borders (RSF) are campaigning for a right protection of whistleblowers. They are asking for worldwide respect of principles: “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.”
The big obstacle will be broken through when the burden of proof will be reversed, when the whistleblowers would not have to prove their good faith in order to obtain protection. In other words, when whistleblowers will be finally regarded as vital and not harmfull anymore…