Legal Threats to Whistleblowers

Following the closure of the News of the World, News Corp set up a Management and Standards Committee which revealed identities of a number of confidential sources to the police. This saw the launch of Operation Elveden. During the course of the investigation over 90 arrests were made resulting in 34 convictions, the majority of whom were public officers found to have taken money from journalists in exchange for information. Ranging from government misspending to salacious gossip, the public interest in each disclosure varied considerably. While morally questionable, receiving money in return for information in many of these cases may have been secondary to the officer’s primary intention to act as a whistleblower. As a result of the investigation, over 30 journalists were also arrested on suspicion of conspiracy to commit misconduct in public office for their role in providing payment for this information. Whether morally bankrupt or ultimately serving the public interest, the selling of information to the press was widespread prior to the Leveson Inquiry. The Elveden cases show just how ambiguous the offence is, with many individuals unaware of their status as a public official and journalists as their proxy in committing the offence.

Protect is campaigning for a public interest defence for whistleblowers to be included in relevant legislation that prohibits disclosures. In 2015, the Law Commission undertook a review of the MIPO offence. We have contributed to this process where the Law Commission have proposed stripping out any whistleblowing from the offence.  We are still awaiting the Government response to these proposals.

Osita Mba blew the whistle on a £10 million sweetheart deal between Goldman Sachs and his former employer HM Revenue and Customs, exempting the bank from paying its taxes. Osita informed the auditor general of the National Audit Office and two parliamentary committees of the wrongdoing. In the meantime, his identity was revealed to HMRC who banned Osita from entering the workplace, initiated an investigation and disciplinary proceedings against him, and threatened him with the possibility of prosecution. More than a year later, it came to light that HMRC had used the powers under RIPA to search Osita’s belongings, emails, and both his and his wife’s phone records. MPs severely criticised HMRC for using these powers against Osita, and praised him for bringing his concerns to light. Osita left HMRC and filed a PIDA claim.

Protect has been lobbying for better whistleblower protection in the Investigatory Powers Bill for intelligence services staff (who are currently excluded from PIDA protection) and those working for communications service providers. Protect Supported the Press Gazette ‘Save Our Sources’ campaign to end public authorities accessing journalists’ phone records. The campaign has resulted in the Acquisition and Disclosure of Communications Data Code of Practice (which is now underpinned by law). This gives explicit protection to journalists and their sources for the first time in RIPA.

In 2014 the LuxLeakspapers revealed how Luxembourg has been sanctioning corporate tax avoidance by some of the world’s biggest companies. It soon emerged that two former employees of PricewaterhouseCoopers had leaked the information. Antoine Deltour and Raphaël Halet face charges of theft, violating Luxembourg’s professional secrecy laws, violation of trade secrets, and illegally accessing a database. If found guilty they face up to ten years in jail and a fine of up to €1,250,000 (US$ 1.4 million). At the trial, the prosecutor cited the new Trade Secrets Directive as a legal basis for pursing such matters in future – raising suspicions that the new Directive may

Protect advocated for better protection for whistleblowers and there is now an exception in the Trade Secrets Directive to this effect.  We also ensured that when the directive was implemented by the UK Government that PIDA was highlighted as protection for whistleblowers. However, the burden of proof still remains on the individual to show that they did not reveal a trade secret. Protect has been supportive and contributed evidence to the draft whistleblowing Directive that was launched in 2018 that will mitigate some of these effects.