Edward Snowden, Frances Haugen, Irène Frachon, Antoine Deltour… So many names have appeared in recent years in the news and attached to the term “whistleblower”. Today, “the problem is no longer broadcasting an alert, unlike 20 or 30 years ago, when you had to find an editorial staff or a journalist ready to publish. The question facing our modern democracies is what are the consequences and how do we protect David against Goliath”, analyzes Sylvain Waserman.
Better protect them. This is the leitmotif of the deputy of Bas-Rhin, member of the presidential majority, author and rapporteur of the new law on whistleblowers. Validated by the Assembly on Tuesday, it must still be signed by the Senate “for form” on February 15, before “being set to music by the government within six months”. He explains to 20 minutes how and why being a whistleblower “is becoming a pillar of our democracy”.
How does your bill go further than the one that previously governed this status, the so-called Sapin II law?
I started to take an interest in the subject three years ago. The law is not completely stabilized in this area. The Sapin II law was the first to talk about whistleblowing, it had that merit but it was not effective. We can define four main axes of change.
First, it is no longer necessary to alert internally first. Imagine so far, if you found out that your factory was dumping mercury into the river next door, so you had to first go to your boss responsible for these facts to tell him that you had discovered them. Now, that is no longer the case.
Then, a whistleblower was until now very alone financially. Today, a judge can impute the costs of the defense to the attack, to rebalance the fight between David and Goliath. Even if the whistleblower loses their case, the decision to charge the legal costs to the attack is final. It is also a way of fighting against “gag proceedings”, an abusive use of lawsuits initiated by behemoths who have enormous financial means. This should allow self-regulation: after three trials to pay the costs of the defense as well as the attack, the “big guys” will surely be tired and the whistleblower will escape ruin.
Then now, reprisals, such as being fired, being dismissed, being pinned on a blacklist, losing credibility in the profession, having contracts terminated when you are a subcontractor, etc. are listed. They become a criminal offense as for harassment.
Finally, the Defender of Rights is now responsible for granting whistleblower status in a formal opinion to those who request it at the start of the procedure. Before, it is the court decision, which often occurs after two or three years, which was authentic. There, there will be no more blurring.
Last thing to underline: we changed the mention which obliged the whistleblowers to “be disinterested” by the obligation “to have no financial counterpart”. This rules out bounty hunters but reduces the chances for companies, for example, to use the employee’s liabilities in the procedure.
What differentiates this bill from the 2019 European directive?
The European directive was restrictive since it only concerned topics that came under European law and only the professional environment. An example: in the creeks of Marseille, a diver who discovers that a factory is throwing its waste into the sea, he is a whistleblower but not in the sense of European law.
The difficulty was to take the best of the Sapin II law and the European directive. Today, we can say that we have the best European legislation in terms of protecting whistleblowers. It is a subject that speaks to people. It’s not a technological or legal problem, it really concerns everyone.
Do you see any limits to this new law?
We discussed a lot with the associations and the economic world, in particular the possibility that the whistleblower could be a legal person. I opposed it. We have found a crest line: alongside the whistleblower, there can be a facilitator, who can be a natural or legal person, and who now has a clear legal status. He cannot be accused of concealment of documents, for example, as the whistleblower has no criminal liability within the framework of the procedure. The FNSEA as well as Transparency Inetrnational, the House of Whistleblowers, L214 or the Medef have validated this agreement. I really believe it is becoming a pillar of our democracy.
In which areas can we still not launch an alert?
There are four sectors: defence, national security, medical secrecy and lawyer secrecy. There are certain exemptions, for example if the health of the children is threatened. Medical secrecy does not apply in this specific case. Specific procedures already exist for these four specific areas. This was already the case in the Sapin II law. We haven’t touched it.