EU whistleblower rules: public reporting must be a safe option, newspapers say

MEP Francis Zammit Dimech: EU whistleblower law approved, will stop attacks by Maltese government

MEP Francis Zammit Dimech
MEP Francis Zammit Dimech

Nationalist MEP Francis Zammit Dimech has tabled amendments to the EU’s Whistleblowers’ Directive to ensure that persons who disclose information publicly qualify for protection where reporting persons have valid reasons to believe there is collusion between the perpetrator of the breach and the competent authority, or that evidence can be concealed and destroyed. 

The amendments were endorsed by various political groups. 

“It is a must to protect persons who report breaches of law including corruption in public procurement and money laundering. This is in the public interest as money which can be invested in more health services and housing is currently being sieved to the very few. This law is also about ensuring environmental and safety standards and consumer protection. Today’s vote will give whistleblowers adequate protection and remedy bad practices in member states,” Zammit Dimech said following a vote taken in the Committee on Legal Affairs on a EU-whistleblowing legislation which was adopted. 

The European Broadcasting Union, European Federation of Journalists, European Magazine Media Association, European Newspaper Association and News Media Europe have encouraged MEPs to ensure the proposed directive guarantees a robust protection for persons choosing to turn to the media to report unlawful or wrongful acts. 

“The draft directive, as proposed by the European Commission in April 2018, falls short when it comes to guaranteeing satisfactorily protection for whistleblowers who exercise their right to freedom of expression. The declared aim of the proposed directive is to harmonise the protection of whistleblowers throughout the European Union and to 'better detect and prevent harm to the public interest’, by protecting ‘those who act as sources for investigative journalists, helping to ensure that freedom of expression and freedom of the media are defended in Europe,’ as the European Commission announced on 23 April 2018.” 

However, the proposed directive does not fulfil its stated objective by opting for a complex “tiered approach”. 

In addition to establishing an order of priority between internal and external reporting channels, it also foresees that reporting and informing the public through the media would be available as a last resort, only after these channels have failed or would be considered inappropriate in very specific cases. 

“We are concerned that such layered administrative burdens which fall on the whistleblower would unavoidably have a deterrent effect on the latter and would de facto act as an obstacle for the whistleblower to report to the media. This would have a negative impact on media freedom in Europe and on the citizens’ fundamental right to receive and impart information, as guaranteed by the European Charter of Fundamental Right,” the stakeholders said. 

The organisations said the editorial control and responsibility of the media service provider offers an additional safeguard against inappropriate public disclosure. “The watchdog and scrutiny roles of the media would inevitably be undermined if whistleblowers are prevented from turning to journalists. Furthermore, the current format of the proposed directive would most probably not apply to recent big scandals brought by whistleblowers to the media, such as LuxLeaks or Cambridge Analytica. Whistleblowers should not be sanctioned for doing so. They deserve full protection.” 

The five organisations together appealed for the drop of the three-tiered approach included in the article 13 of the proposed directive to be made compliant with the Council of Europe Recommendation – adopted by the Committee of Ministers in 2014 – which states that “the individual circumstances of each case shall determine the most appropriate channel.” “Considering that potential whistleblowers find themselves in a highly sensitive situation at the moment when they decide to blow the whistle, it would be unfortunate to add provisions providing more legal uncertainty than is already the case,” the organisations said. 

Zammit Dimech said that although the Maltese government had introduced whistle-blowing legislation, the law was “nothing else than part of an ongoing spin campaign by the government. In fact, the government protects and gives contracts to whistleblowers who blow a whistle that is pleasant to the government.” 

Zammit Dimech said people who unveil corruption were not given protection. “Worse than that, the government systematically attacks people who turn up to be whistleblowers and tries to discredit them. This whistleblowing legislation is thus a counter-measure to the bad practices of a number of member states, including Malta. Corruption has an impact not only on the reputation of our country but on our lives as money spent on infrastructure, projects, health services is pocketed by the very few when corruption is in place.” 

Earlier on this year the Committee responsible for media also adopted the recommendation of Zammit Dimech to strengthen the whistleblowing legislation. His recommendations included the right of appeal, protection of intermediaries including journalists and public disclosure.