Vigjilenca Abazi: “Whistleblowing is a Manifestation of Freedom of Expression”

Dr. Vigjilenca Abazi is an Assistant Professor of EU Law at Maastricht University and a Research Coordinator at the Centre for European Research in Maastricht (CERiM)¹https://www.maastrichtuniversity.nl/web/Institutes/CentreForEuropeanResearchInMaastrichtCERiM.htm. She is also a co-author and legal adviser of the draft directive for whistle-blower protection²Whistleblower Protection in the Public and Private Sector in the European Union. A Draft Directive https://www.Greens-Efa.Eu/Legacy/Fileadmin/Dam/Images/Transparency_Campaign/WB_Directive_Draft_For_Consultation_Launch_May_2016.Pdf across the European Union, which she presented at the European Parliament on 4 May 2016. This draft directive was initiated by the Greens/EFA group in the European Parliament. Based on international standards of best protection for whistle-blowers, the goal of the draft directive is to inspire the European Commission to use its power to propose legislation for the protection of whistle-blowers across the European Union. According to the summary³Summary of the draft directive for the protection of whistle-blowers across Europe: A Greens/EFA Transparency and Democracy initiative, https://www.greens-efa.eu/legacy/fileadmin/dam/Images/Transparency_campaign/Summary_of_the_draft_WhistleBlower_directive.pdf of this draft “where whistle-blower protection exists in the EU, provisions tend to be scattered across different laws, with some member states having regulated some level of protection in anti-corruption laws, others in public service laws, and again others in labour, criminal and sector-specific laws, thus leaving significant legal loopholes and gaps. As a consequence, whistle-blowers across the EU enjoy uneven levels of protection, or in six countries, no protection at all.”

The draft also explains that “in the absence of such protection in the EU, whistle-blowers face a lack of adequate legal safeguards from retaliation, but also from intimidation and isolation. More unified action across the European Union is necessary to ensure that workers throughout the EU benefit from the same working conditions, and have the same incentives and legal protections for exposing corruption, abuse of power and other wrongdoing.

The proposal was authored by Dr. Abazi and her collegues: Professor Alberto Alemanno, Pamela Valerie, Bartlett Quintanilla, Dr. Janina Berg, Zita Herman, Peter Rauschenberger, and Mélanie Vogel.

• Dr. Abazi, why is it important to protect whistle-blowers?
• First of all, it is important to define what we mean by the word “whistle-blower” and “whistleblowing” more generally. The draft directive provides that “whistle-blower” means any worker or contractor who discloses, attempts to, or is perceived to disclose information or supporting evidence that is in the public interest or that is related to a threat or prejudice to the public interest, of which he or she has become aware in the context of his or her work-based relationship. Hence, whistleblowing means the disclosure of information in the public interest. The definition itself points to the relevance that there is a public interest in disclosure and this element enables us to differentiate whistleblowing from other related types of disclosures. Whistleblowing has a dual nature: it is an accountability instrument; we need individuals who have a unique position inside an organisation to be able to have the freedom and the protection to be able to point out when mistakes are made in the organisations they work for whether it is a private company, a hospital, or ministry of foreign affairs – hence it should not matter whether the individual’s work is based in the public or private sector. In principle, whistleblowing is an important channel of information. The second aspect to whistleblowing – and, I think, quite fundamental, especially in the context of EU – is that whistleblowing is a manifestation of freedom of expression. And society needs to legally protect individuals who exercise this freedom. This important aspect of whistleblowing is also recognised in the case law of the European Court of Human Rights based in Strasbourg. To address your question more shortly about why whistle-blowers should be protected: there are two key reasons. First, they serve the public interest, they serve society with their disclosure and hence there is a societal duty to protect individuals who take this step. Second, individuals in the democratic society should be able to exercise their freedom of expression. Therefore, the other legal obligation is to create a working environment where a person can exercise that freedom.
• How do you suggest protecting the whistle-blowers?
• The draft directive suggests that the protections should include exemptions from criminal proceedings related to the protected disclosure, including but not limited to prosecution for the disclosure of classified information, trade secrets or otherwise confidential information, exemptions from civil proceedings and disciplinary measures, and prohibitions of other forms of reprisal, including inter alia dismissal, demotion, withholding of promotion, coercion, intimidation, etc. Action taken against individuals other than the person who made the protected disclosure (for example colleagues or family members) may also constitute prohibited reprisal. In practice, the whistle-blower may face many consequences, including stress and other difficulties that are not strictly related to the legal protection, but as far as the law is concerned, it should be especially clear that these individuals do not face prosecution for the disclosure they have made.
• Do you think a state can have any secrets at all?
• Absolutely. As a researcher of government secrecy and classified information, I have looked at these issues in quite some depth over the past seven years. But the question is not whether there should be any secrets at all, rather the question is how to ensure in a democratic society that legitimate secrets are kept safe and all other information is publicly available. Hence, government secrecy requires that a system is established where secrets worth keeping are well protected and the rest of information is public. I would stress that only necessary secrets could be categorised as potentially legitimate secrets. And this brings us of course to the question of what could make secrets necessary. There are a variety of reasons why any organisation or state needs certain information to be protected.
  The most obvious ones are security reasons. For example, a military plan will not be disclosed to the public. Or an arrest would not necessarily be disclosed to the accused criminal as the element of surprise that secrecy offers might be necessary for the arrest to take place. Similarly, security agencies have the prerogatives to classify documents and there is no issue as such with an agency having this power. The problem however would arise if the agency over-classifies information. This means that information is protected at a higher level than necessary or that information that should not be secret at all is kept secret, The question then becomes why would there be over-classification, and unfortunately the answer may also be that the agency tries to keep embarrassing or incriminating information secret. Those are problems that we see in practice when secrecy is abused; in these cases the power to hold secrets is used beyond what is necessary and legitimate.
• Who can determine this line and who can understand the balance between what can be exposed and what can not?
• This question reaches to the core of the democratic accountability dilemma. This is exactly the problem of who should have the power to decide, not only as a theoretical question, but also how this dynamic of keeping and disclosing secrets actually works in practice. Practically, who has the information? It is generally the executive branch, the government or security agencies that hold the information. For example, assume that there are international negotiations between the ministries of foreign affairs – they will have the negotiating documents in their possession. They will be able to ascertain whether a particular negotiating issue is sensitive and should not be disclosed more widely during the negotiating process. Similarly, a minister of defence would have information that is security sensitive and important to the national interest and national security and therefore should not be disclosed more widely.
  The system of checks and balances is however indispensable and crucial for institutionalised checks on secrecy, parliamentary committees must be able to have access to this information and to be able to oversee whether those secrets are justified. Courts must also have full access to classified information. More concretely about the European Union: the EU has the power to sanction individuals or organisations by freezing their funds. And this is a very important tool that the EU has in fighting terrorism. From the perspective of access to justice and fair trial, it is very important that an individual has access to the information and is able to know the real reasons why he or she is being listed in the sanctions. However, often what can be seen in practice is that those documents are classified because of protection of interests in national security and hence they will not be disclosed to the individual. In the past the key problem was that these documents were not disclosed to the court either, which made the judicial review of those executive decisions difficult. The court’s approach was simply – and logically – not to take into account the arguments presented by executive institutions, which were based on undisclosed documents. This resulted in a weakened justification for the sanctions imposed by the Council and sometimes led to a ruling in favour of the sanctioned individual. Recently the The European Court of Human Rights has changed the Rules of Procedure in order to be able to access classified information and it is yet to be seen whether in practice this change leads to sharing of classified information by the member states to the court and how this affects judicial review of secrecy.
  I cannot stress enough how important it is for a democratic society to have a well-functioning institutionalised system of checks and balances in order to be able to check that executive secrets are actually necessary and legitimate. This is where the whistle-blowers come on stage for the information asymmetry between the executives, parliament, and judiciary. How can we know that all these organisations disclose all the relevant information on a basis of which they would be held accountable? How can we know that a security agency is giving the parliamentary committee all the documents necessary for the latter to oversee their work? This is where the insiders of the organisation are needed. If they see that something is wrong, if they are aware about an abuse of power, they should be able to report it to the public. For the sake of clarity, I should add that by raising these questions I am not making a claim that executive institutions or agencies are always trying to hide abuse behind the veil of secrecy – this is merely to say that secrecy structurally gives rise to the opportunity to cover abuse and importantly, a basic premise in a democratic society is that public power must be held accountable.
  Whistle-blowers are a very important tool in the broader mosaic of accountability instruments that can make a functional system to have a dynamic equilibrium between protecting state secrets that are legitimate and disclosing information that hides abuse of power.
• Should we assume that whistle-blowers always fight for freedom of speech? Even if they think so, can their actions be destructive and work for authoritarian regimes?
• Basically, your question is: “Is whistleblowing always good?” The importance of a good law is precisely to provide legal certainty, both for society and for the individual, that if there is a disclosure of secrets this is done in the service of the public interest and to determine when a disclosure of information has no public interest but was rather, for example, a question of political gaming. Disclosure that is conducted in the public service should lead to a situation where the individual is protected.
• Can you provide some examples of whom we should protect and whom we should not?
• There are many circumstances in a case that are relevant and hence we would need, for example, to rely on the judiciary for a judicial review that questions all the relevant facts. It is important to add however that a whistle-blower can be any one of us. We ought to realise that not all situations or disclosures are similar to the proportions of those of Edward Snowden. I try through my research to remind people that whistle-blowers are ordinary individuals like you and me. Someone who would actually be aware of an abuse of power or corruption, among other issues. For example, a nurse would be “blowing the whistle” internally in her organisation when she is reporting on medical equipment that does not meet appropriate standards. In such a case, the public interest is to know that the medical care in a hospital is being done well. And if this nurse is not being taken seriously by the management, for example, or if she sees that there is a misuse of power by them intentionally, then she should be able to report to the press, to local authorities and address this problem.
  In other words, we need to think of more ordinary life situations where whistleblowing actually takes place more often than the cases that make it to the headlines of the international press. The situations about important national security revelations like we saw with individuals such as Edward Snowden and the consequences are more of an exceptional situation. Usually, whistleblowing is much more connected to everyday problems. Of course, it can be about big corruption scandals. But the scale of the revealed problem does not have always to be immense and the scale of disclosure does not determine whether this would be categorised as whistleblowing.
• Whistleblowing on a lower level of our ordinary life is understandable. But I still think about what the difference is between leaks and whistleblowing on a big scale. It’s a very thin line between them. I wonder if the whistleblowing always works for democracy, or sometimes against it?
• I fully agree with you. This is a challenge both theoretically and in practice: how to decide whether disclosure is valuable for the public interest and whether it serves democratic accountability. In addition, it is a challenging task to create parameters of valuable disclosure in abstract since there are numerous factors of relevance. For example, drawing on extensive research on this topic, I try to create a legal framework where we can understand the implications of whistleblowing not only for transparency but also for personal privacy. We should not forget that sometimes when people blow the whistle the documents that are disclosed contain personal data of individuals, the details of their private lives. Is there a public interest for us to know the names of those individuals? If these individuals are journalists for example, and we’re talking about a dictatorial country or a country where freedom of press is severely harmed, these journalists can be put at risk. Therefore, we have to think of the consequences of leaking much further than just saying: “Well, look, this is a very important topic, or this is a very bad politician.” It cannot be done to the extent that it does not serve the public interest and it cannot be done in a way that harms innocent individuals. Secondly, it is a challenge to establish in abstract an evaluative framework in order to determine when something crosses the thin line between leaking and whistleblowing. We see a lot of leaks happening now with the Trump Administration in the United States. Some of that information is important maybe for the press, but for the public interest it maybe not important at all. It may be information disclosed intentionally from within the administration by individuals who would like to focus public attention of certain issues. We should indeed ask which leaks are actually helpful for democracy, does disclosure provide citizens with accurate information and enable them to have a more informed view on decision-making? We should not ignore that an overflow of information could instead of helping public deliberation rather lead to more confusion, suspicion and speculation. Democracy relies on an informed public debate. Leaks do not always achieve this goal or often they may not be intended at all to reach democratic ideals. Leaks could be used to create an atmosphere of uncertainty in the public sphere and leaks could be used strategically for political gains.
• Do you think this proposal to protect whistleblowing will help to understand and draw the line between leaking and whistleblowing?
• The draft directive that I worked on together with colleagues, which was presented at the European Parliament last year, really tries to derive from the best international standards and practices. We have done an extensive analysis of existing laws, regulations, recommendation as well from the Council of Europe, and NGOs, and national laws that provide good examples. We have tried to create a framework where we provide a clear definition of whistleblowing and provide broader situations that may be determined under whistleblowing. Importantly if the whistle-blower is sacked from work or sanctioned, the employer should be the one who proves that the whistle-blower had bad intentions and was not acting in the public interest. More specifically, the draft directive provides that: “Member states shall require the employer to demonstrate by clear and convincing evidence any claims or statements that the disclosure is purposefully dishonest, or is absent of the public interest and that any measures taken against a whistle-blower are not in any way related to the disclosure.”
  The draft directive aims to set a legal framework in a way that can be helpful for the court, when those cases reach the court, to be able to determine whether a particular individual is indeed whistleblowing or not. And in this case, you see also case law from the European Court of Human Rights. And I think that is also helpful perhaps to a large extent to determine when something can be categorised under whistleblowing.
• What stage is your proposal now on? What are the next steps for its implementation?
• It is the European Commission that has the right to propose laws in the EU. The draft directive that we worked on hence may be seen as only a potential model on what legislation at EU level may look like, but legally it is not a proposal and legally it has no binding effect. At the moment the Commission has initiated public consultation with regard to whistle-blower protection in the EU and thereafter there will be an impact assessment by the Commission on whether it is legally feasible to propose legislation on whistle-blower protection at the EU level. This is a crucial upcoming period for potential whistle-blower protection in the EU.

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