Protect Legal Adviser, Emma Darlow Stearn, reflects on the significant legal protections provided to whistleblowers in France and how they can inform legal reform in the UK.
It may be helpful to look across the channel for inspiration from France’s new whistleblowing law.
In 2019, the EU ‘whistleblowing’ directive was passed, setting a minimum standard of protection that EU countries are required to provide for whistleblowers. Countries have implemented the directive in different ways and at different paces (The EU Whistleblowing Monitor is a great resource to stay up to date with what is being done across Europe). France is worthy of note for having far surpassed the minimum standard required by the EU, as well as the protection whistleblowers get under UK law.
The UK, post-Brexit, is, of course, no longer compelled to implement EU directives. That does not mean that it should close its ears to the standards being set in Europe and internationally. What was once revolutionary—the UK’s Public Interest Disclosure Act 1998—is now behind the times, and comparisons with the likes of France only serve to highlight the need for reform of UK whistleblowing law.
We are not French law experts and recommend that if you are based in France and have a whistleblowing concern, you contact the Maison des Lanceurs d’Alerte and/or the Défenseur des droits (the French Ombudsman). However, our understanding of the new law is that if you raise whistleblowing concerns in France, you should benefit from the following advantages:
You are more likely to be protected
- You do not have to be a worker to be protected. Any person who raises public interest concerns may come under the protection of the French law. Concerns do not have to be raised in the context of a work-based relationship—which was the minimum standard stipulated by the EU directive.
- Those who help and assist you as a whistleblower, including NGOs, colleagues, close relatives of the whistleblower, etc., are offered the same level of protection.
- If you work in the military, you are protected, provided that the concerns raised do not contain information that may harm defence and national security.
You may get financial assistance
- You may be able to get substantial help with your legal fees, and in some cases living expenses (from the offending organisation, via an application to a judge) in the event that:
- you are victimised (i.e. you are dismissed, discriminated against or harassed);
- you are the victim of a SLAPP lawsuit (lawsuits brought against a whistleblower—normally, but not exclusively, defamation claims—with an intention to silence them with the threat of costly litigation).
Anyone who victimises you may face harsher punishment
- If anyone victimises you for raising whistleblowing concerns– your employer, colleagues but also anyone else – they may face civil, as well as criminal sanctions (up to three years imprisonment and a fine of €45,000).
- If anyone brings a SLAPP lawsuit against you, they may face a fine of €60,000.
You are less likely to face prosecution
- You are immune from criminal liability for offences committed in order to gather evidence regarding your public interest concerns, as long as you became aware of the information in a lawful manner in the first place. For example, if you see a report about your corporation being involved in tax fraud on the intranet to which you have legitimate access (information obtained “in a lawful manner”), you can dig into the intranet to gather further evidence about the fraud, without having to face further charges for theft or computer fraud.
You have greater support
- There is a positive duty on regulators to help you psychologically and financially.
- The powers of the French ombudsman have been increased. It can now undertake investigations, make recommendations and intervene in court cases, as well as advise whistleblowers on whether or not they qualify for protection.
You have power in numbers
- You can bring a class action—a lawsuit filed on behalf of a group—against your employer for victimisation (if other people have also suffered victimisation for raising public interest concerns).
France is not the only country in the process of increasing protection for whistleblowers, nor do their reforms align perfectly with what Protect would like to see in the UK, but their new law is certainly a heartening example of what considered, logical reform of whistleblowing law can look like. Along with its other positive provisions, the French law’s attempts to ensure financial and psychological support for whistleblowers and its measures to deter the chilling effect of SLAPP lawsuits send a clear message that everyone should be supported when raising public interest concerns and no one should be silenced.
Protect is the UK’s leading whistleblowing charity. If you work in the UK and would like advice on your whistleblowing rights or how to raise a whistleblowing concern, contact our adviceline on 020 3117 2520 or email us.