Deutsche Welle, 11 July 2013
The case of Edward Snowden remains in the international spotlight. Yet even in Europe, there's little protection for those who point out corruption, crime and wrongdoing, explains Transparency International's Mark Worth.
The case of Edward Snowden remains in the international spotlight. Yet even in Europe, there's little protection for those who point out corruption, crime and wrongdoing, explains Transparency International's Mark Worth.
Deutsche
Welle: With the current case of Edward Snowden there's a lot of attention on
whistleblowing across the world with the focus on the situation in the United
States. There's a lot of public sympathy for Snowden - but what's the situation
for whistleblowers actually in Europe? To which extent are people employed in
the public or private sector protected from retaliation or being fired if they
choose to uncover corruption, misconduct or crime in the company they work for?
Mark Worth:
The only country in the EU that has a strong whistleblower law and where there
is a somewhat well functioning enforcement system is the UK. Britain has had a
law on the books since 1998 that protects employees in the public and private
and also the non-profit sectors. So if you follow the procedure to blow the
whistle on wrongdoing, corruption, crime and so forth and it is in the public
interest, then you'd be legally protected from being fired, demoted, harassed,
or being transferred against your will. That law has been on the books since
1998.
Hungary has
a similar law that protects people in the private and public sectors but
there's no agency to receive the complaints and from what we've been able to
determine it does not work very well in practice. But those are the only two
countries in the EU that have an actual whistleblower law to protect employees.
The case of Edward Snowden has attracted massive interest and sympathy in Europe |
How come
the legal situation is that weak?
Whistleblowing
is a rather new area of law. In the US it really only goes back to the late
1970s where you have an actual whistleblower law to protect government
employees from retaliation. In Europe the debate didn't start until the 1990s
and it didn't start until the UK had a very serious string of disasters and
scandals and accidents that could have been prevented, which led to the passage
of the Public Interest Disclosure Act (PIDA) in 1998. And then there was a lull
and then we had more laws proposed or passed in 2008 and 2009 - perhaps in response to the financial crisis.
Citizens became more concerned about corruption, embezzlement and fraud in the
financial sector and there was a lot of political turmoil resulting from that.
Now, even countries like Greece and France and Slovakia, which are countries
that don't have a strong tradition of whistleblowing are proposing
whistleblower laws.
So there's
been a huge surge in the proposing of whistleblower laws just in the last two
years in Europe. And it's a combination of factors like the financial crisis,
political instability, or the media realizing that whistleblowers can be
valuable sources of information. Cases like Bradley Manning or Edward Snowden
are drawing attention to the problem. And there's also commitment under the UN
Convention against corruption. About 170 countries are signatories to that UN
Convention, which actually has a provision there for whistleblowing. Also, the
OECD has been very active in promoting whistleblower rights and so has the
Council of Europe been.
As of right
now in Europe, I would categorize the situation as being not very good at all
in terms of what's on the books. Only the UK really has this reliable law - and
even that law has been criticized by certain people.
Why is it
that there seems to be a different approach in different EU member states? What
about legal and cultural traditions?
In many
counties there's just not a culture of whistleblowing and there's a lot of
historic baggage from authoritarian regimes. So if you just tell on anybody
even if you're just trying to help, you're quickly called a traitor, or a
snitch, informer, or denunciator. A lot of these terms are still being kicked
around. There are a lot of primitive viewpoints on whistleblowing and we need
to do a tremendous amount of public education, education of members of
parliament and the media to present whistleblowers as who they are - people who
care about the world and who want to expose problems that can save lives,
money, the environment - and to help to protect the rule of law. People who do
the right things for the right reasons.
In the
former East Germany, we're talking about a system that ended just 24 years ago.
So we're not talking about grandparents, but rather about people who are still
relatively young and who remember that they themselves were spied upon by their
neighbors, friends and colleagues.
In many Europeans countries, it's their authoritarian past that gives whistleblowing a bad name |
The United
States of course has a different history; the US didn't have to got through
that. And there is a connection between the political history and how
whistleblowers are perceived in the media and in the public.
To which
extent is Brussels tackling this problem on an EU-wide level?
That's what
we're pushing for. The Council of Europe has some committees that have put out
recommendations for whistleblower laws. These recommendations look very strong
but whether that will lead to an EU directive or regulation remains to be seen.
Certainly, Transparency International will be calling for at least a public
consultation at the EU to see what would be the most appropriate legal
mechanism to have an EU wide whistleblower standard.
If you look
at what's happened in the past five years, I would say that a standard or
regulation in some time would be inevitable for the European Union. So we want
to encourage the EU to start a public consultation, start a debate, figure out
the best legal instruments to have a directive or regulation. It should be
based on the current international prevailing standards which have been put to
the test by several countries that have had whistleblower laws in practice for
10, 20 or 30 years.
The EU and
the various EU countries just have to get the political will to do what we
think is inevitable. And every day that we wait - we have whistleblower
retaliated against, we have scandals that go unreported, we have environmental
damage that goes unaddressed.
When you
try pushing EU or member states, are they keen on cooperation or rather
hesitant to pick up your suggestions?
In many or
most EU countries the political leaders have made public statements supporting
whistleblower laws, but then nothing or only very little happens. Or they
propose a law that wouldn't work or the government changes and nothing happens.
Some countries have been promising a whistleblower law for 10 years and nothing
happened.
The EU
wants to lead the World on Human Rights, on citizen participation, on access to
information. If you look at the European charter on fundamental rights, the
ideal set out in this charter has three elements that are included in a
whistleblowing law. Freedom of expression, freedom against unfair firing,
access to remedies. So that's a whistleblower law. If the EU wants to uphold
standards that are included in the fundamental rights, it should have a
whistleblower law, regulation or directive based on its own standards. And I am
very surprised how few EU countries have the political will to pass such law.
Many political leaders in the EU have made promises, set up committees, working
groups, study groups to look into whistleblower laws and then nothing happens.
The fact
remains that whistleblowing is a proven mechanism to fight crime, expose
corruption and wrongdoing. There is absolutely no reason that you should be
retaliated against for doing the right thing. That doesn't make sense on any
level.
What's the
situation like in Germany?
In Germany,
the governing center-right coalition under Chancellor Merkel voted last month
not to hear any proposals on whistleblowing. There were requests put forward by
the Greens, the Left party and the Social Democrats in the last couple of
years. So Germany is not good on whistleblower rights, there's no whistleblower
provision. There's a case where the European Court of Human Rights ruled a few
years back that retaliating against a whistleblower can be a human rights
violation, violating a person's freedom of speech.
In Berlin,
a nurse was fired for exposing poor treatment of the elderly in a nursing home
which was majority-owned by the city of Berlin. She was fired and several
layers of German courts ruled against her. Germany has a provision in one of
the civil laws that a person can be fired if it is socially justified - well,
what does that mean and how does someone determine whether it's socially
justifiable? So Germany's record at least in the last years has not been good.
Turning our
attention back to those countries that do have a law in place - does it work?
Absolutely.
People are coming forward. The main reason people don't blow the whistle is
fear of retaliation and fear that nothing will happen as a result of what they
tell. So if we knock down those two barriers, a lot more people will come
forward. There is enough evidence showing that once you have a good
whistleblower law on the books, people will use it.
I think
that in Europe there really is a lot of lost opportunity and lost value. We're
still in the middle of the financial downturn. I think that in order for
citizens to feel fully engaged in their community, they should be given the
right to be protected and I wouldn't feel like the government fully trusted me
if they didn't give me whistleblower protection.
If Europe wants
to be a beacon of human rights, justice and citizen participation, this is a
great opportunity for EU countries to do that. The value of whistleblowing
needs to be more embraced by the European Union and by EU countries and the
concerns presented by the EU's political leaders just do not hold water and
there really is no reason why we can't move ahead. They should look at the UK
and those countries that are stepping up to fix the problem and learn from
their experience.
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