6 June 2016

Protecting whistleblowers and whistleblowing, a challenge for democracy

The Panama papers affair, just like with the previous Lux leaks or Snowden revelations, once again confirm the importance of the role of whistleblowers in defending public interest. Whistleblowers are at the centre of events as never before, holding governments and corporations to account for illegal activity, corruption, abuse in care and environmental damage, and often risking their careers and lives. With the Panama Papers even the French president started to speak about Whistleblowers!

Whistleblowers point to where accountability mechanisms are failing or, in some cases, do not yet exist. They question our democracy, the place given to information, secret and transparency, the necessity to transcend the constraints of national legal systems if we are to confront trans-border crimes and global corporate power. In this sense whistleblowers can be seen as a wider public accountability mechanism that requires long term vigilance and consideration.

The term ‘whistleblowing’ was used for the first time in the US in 1972 by Ralph Nader. Ralph Nader is an American activist and lawyer, whose action was in line with the American civil rights movement and inspired  by Gandhi and Martin Luther King. He compared what Woodward and Bernstein report in the Watergate scandal and what Daniel Ellsberg revealed in the Pentagon Papers affair to the whistle of a referee in a sport game, indicating an illegal move or action by a player. Whistleblowing laws were developped in the 70’s in US and at the end of 90’s in Europe. Following a series of fatal disasters and high profile political and business scandals, the UK passed the first comprehensive whistleblower law ever adopted in Europe -the UK Public Interest Disclosure Act (PIDA) in 1998 -.  In France, the term “lanceurs d’alerte” was created in the 90’s by the sociologists Francis Chateauraynaud and Didier Torny,  following the different scandals of lead, asbestos, mercury, contaminated blood tragedy and ether glycol. But the first law came in 2007.

Today 60 countries in the world have legal frameworks for whistleblowers protection, some with comprehensive and advanced laws others with partial legal protections [1]. UN and OECD are developing recommendations urging States and international organizations to adopt or improve laws and practices and to foster the necessary political and social environments that provide genuine protection to sources and whistleblowers [2]. At European level, a building framework is underway: principles-related work of the Council of Europe, national experiences (such as in the UK and Ireland), jurisprudence of the European court of Human Rights, and the vote of a recommendation by the European Parliament calling on the Commission to propose EU legislation to protect whistleblowers. At the same time, a trade secret directive has been voted reducing even further public access to information and civil society capacity to identify systemic problems as well as specific failures or abuses by powerful actors.

Our foundation came to this question through an organization that we have been funding since its creation,  Sciences Citoyennes (Citizen Sciences) whose main work is to question the role of science and technology and to put science into democracy.  From the begining they have supported whistleblowers on environnemental and health issue (two of their founding members were whistleblowers) and in 2008, they started to advocate for a law to protect independency of expertise and whistleblowing.  France was really behind in terms of laws to protect whistleblowers and whistleblowing. The first law was adopted in 2007, and then 5 more laws between 2011 and 2015. In 2012 we

started to support specifically the joint work of Citizen Sciences and Transparency International France to mobilize civil society on this question in France and to advocate for a global protection of whistleblowers, for the implementation of an independent authority and charity organization supporting whistleblowers. Their work and the different scandals, notably the health scandal of Mediator (drug created by the company Servier ) and the Cahuzac affair -former French Minister of Budget (who had 15 million euros salted away in his secret Swiss bank account), contributed to the different laws voted in 2013. But those laws only cover partial protections, with no independent supervision body, and no penalties for the offender. A comprehensive law is under discussion.

The global scope of recent Antoine Deltour’s case (Lux Leaks), Swissleaks, and Panama Papers,  points the necessity to transcend the constraints of national legal systems if we are to confront global corporate power. As trade has expanded across borders and as national regulatory frameworks are fast becoming obsolete, the role of whistleblowing has moved from a vital safeguard to a front line of defence. At the European level there is a number of organizations and some MEP at the European Parliament pushing forward a directive to protect whistleblowers and fighting against the abuse of Secret (ie Trade secret directive). There is a momentum and a necessity to create a strong European network.

Above the different thematic (environnement, health , finance, security, digital security), the issue of whistleblowing tackles the question of corporate and State capture, the question of secret and transparency in a democracy, questions of ethics and accountability of the different stakeholders, the question of information and the right to know for citizens. Whistleblowers are a symbol and symptom of our cracking democracy. A society where we have to count of the individual to be the only check and balance to the «power of the king »  and where this person is forgotten and oppressed can’t be a democracy. Whistleblowers help us to question the whole system of our society. They are part of a democratic accountability mechanism, that warns us when our systems of governance of check and balances are failing. They can’t of course be a unique remedy.   Together with investigate journalism, NGO supporting them and those organizations who tackle the challenges that the whistle blown, whistleblowers are playing a very important role to help to catalyze efforts to put forward a real regulation. They contribute to reopen the public space.

Protection of whistleblowers is yet critical but not sufficient. We also need strong independent media and investigate journalism, to press charged against the offender (only way to rebuild trust in the society), we need strong regulation of finance and corporate regulation, transparency and a strong and accountable state of law. As Stepham Pittam wrote in a document on the power of Money[1], philanthropy « plays a different role to that of either the state or the market. It is about supporting a strong civil society to act as a counterweight to the state, to strengthen our democracies both by demonstrating innovative approaches and by holding the state to account. » but « strong and independent civil society is often dependent on philanthropy, and this in turn is most effective when there is a strong and courageous state to interact with. At the moment we are missing the latter. »

We are organizing together with Win network a seminar gathering organizations protecting whistleblowers and whistleblowers and funders interested by the thematic. The meeting will be near Paris in June 8-10. Whistleblowers international network (WIN) is a growing global coalition of national organisations with experience advising and protecting whistleblowers through the courts, in the press and in national legislatures. The Network evolved to respond to an increasingly urgent need for ongoing and systematic exchange of technical expertise and information about the law and practice of whistleblowing internationally.

[1]   Study by Nicole Marie Meyer, Transparency International
[2]  Report of the Special Rapporteur to the General Assembly on the Protection of Sources and Whistleblowers – http://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/ProtectionOfSources.aspx
Committing to Effective Whistleblower Protection – http://www.oecd.org/corruption/committing-to-effective-whistleblower-protection-9789264252639-en.htm


Juliette Decoster

Responsable de programmes, Fondation Charles Léopold Mayer