Whistleblowers: what does the law say?

You've probably already heard of Edward Snowden, Irène Frachon, Chelsea Manning, Julian Assange or Antoine Deltour.

These personalities all have one thing in common: they were on their own, and decided to take on a company or administration to expose its excesses. For example, Edward Snowden did not hesitate to divulge thousands of confidential NSA (National Security Agency) documents revealing mass surveillance programs.

In France, this phenomenon is rarer, but the legislator has taken up the issue to protect them.

A ministerial circular dated July 20, 2018 (following the Sapin II law on ethics in 2017) now specifies the procedure for collecting reports, their management and the guarantees offered to whistleblowers.

Here's how the legislator is handling the new reporting framework.

What is a whistleblower?

A whistleblower is a " natural person who discloses or reports, disinterestedly and in good faith, a crime or misdemeanor, a serious and manifest violation of an international agreement duly ratified or approved by France, of a unilateral act of an international organization taken on the basis of such an agreement, of the law or regulations, or a serious threat or harm to the general interest, of which he or she has personal knowledge".

In other words, a person who decides to call on the public authorities and the media to point out a danger, or to raise awareness of a criminal or delinquent act that he or she has discovered.

It may concern a company, a state or an international organization.

There are whistleblowers in every field: health, internal security, tax evasion, public finance, international relations, etc.

On July 20, 2018, a new circular further framed the status of whistleblowers.

The previous one, dating from 2016, merely provided very vague details, implying a degree of insecurity for the latter.

This has led some of them to live in hiding for several years, like Edward Snowden, who faces up to 30 years in prison in the USA and has been a refugee in Russia since 2013.

How is each case handled?

The new circular specifies that all companies with more than 50 employees must set up a procedure for collecting reports from employees. However, it remains rather vague on the concrete provisions to be applied.

It takes place in four phases:

• Whistleblowers send their reports to their direct or indirect supervisor, to the employer or to any other manager within the company. Theoretically, an official alert recipient must be designated.
• He must support his allegations with precise facts, and provide sufficiently tangible evidence.
• The company is required to deal with each case within a "reasonable" timeframe, while preserving the anonymity of the employee who made the report.
• Once the case has been deemed admissible, the company must destroy any documents that could identify the person who issued the alert. This period may not exceed 2 months from the opening of the alert procedure.

Finally, the company must clearly communicate the existing procedure to all its employees.

In the civil service, there are three different procedures: internal reporting, external reporting and public disclosure. Public disclosure is a last resort, if the report has not been dealt with by the authorities within 3 months.

Finally, in the event of serious and imminent danger, or where there is a risk of irreversible damage, it is possible to appeal directly to the judicial authorities. This is also an avenue that can be exploited if the company fails to comply with the processing procedure.

Nearly 9 out of 10 employees say they are "probably" or "definitely" prepared to report serious incidents in their company, according to a 2017 BVA/Cercle d'éthique des affaires/La Poste barometer

What protection does the law offer whistleblowers?

The law now offers new guarantees to whistle-blowers.

Firstly, it is guaranteed total confidentiality.

The company is formally prohibited from disclosing its name, and must destroy all documents that might enable it to be identified within 2 months of the closure of the proceedings.

Secondly, he is criminally irresponsible if an alert violating professional secrecy is deemed admissible.

A certain amount of discretion is left to the judge, who may arbitrate according to the preservation of the company's interests.

Finally, the whistleblower does not bear the burden of proof.

In other words, all that's required is to provide factual evidence to support the allegations. However, it is up to the accused party to prove his or her innocence.

Thanks to these new provisions, whistleblowers are better protected, and their emergence will certainly put an end to many more abuses within society.

The European Union has also taken up this subject with the drafting of a new directive by the European Commission in early 2018.