On behalf of the EBU (European Broadcasting Union), EFJ (the European Federation of Journalists), EMMA (European Magazine Media Association), ENPA (the European Newspaper Association) and NME (News Media Europe), we would like to strongly encourage the Members of the European Parliament and the Council representatives to ensure that the proposed directive on the protection of whistleblowers, which is currently being negotiated in both institutions, guarantees a robust protection for persons choosing to turn to the media to report unlawful or wrongful acts.
The draft directive, as proposed by the European Commission in April 2018, falls short when it comes to guaranteeing satisfactorily protection for whistleblowers who exercise their right to freedom of expression. The declared aim of the proposed directive is to harmonise the protection of whistleblowers throughout the European Union and to “better detect and prevent harm to the public interest”, by protecting “those who act as sources for investigative journalists, helping to ensure that freedom of expression and freedom of the media are defended in Europe,” as the European Commission announced on 23 April 2018. However, the proposed directive does not fulfil its stated objective by opting for a complex “tiered approach”. In addition to establishing an order of priority between internal and external reporting channels, it also foresees that reporting and informing the public through the media would be available as a last resort, only after these channels have failed or would be considered inappropriate in very specific cases.
We are concerned that such layered administrative burdens which fall on the whistleblower would unavoidably have a deterrent effect on the latter and would de facto act as an obstacle for the whistleblower to report to the media. This would have a negative impact on media freedom in Europe and on the citizens’ fundamental right to receive and impart information, as guaranteed by the European Charter of Fundamental Rights.
The EBU, EFJ, ENPA, EMMA and NME would like to emphasise the crucial role of investigative journalists, acting as filters, fact-checkers and bound to respect ethical principles. The editorial control and responsibility of the media service provider offers an additional safeguard against inappropriate public disclosure.The watchdog and scrutiny roles of the media would inevitably be undermined if whistleblowers are prevented from turning to journalists.
Furthermore, the current format of the proposed directive would most probably not apply to recent big scandals brought by whistleblowers to the media, such as LuxLeaks or Cambridge Analytica. Whistleblowers should not be sanctioned for doing so. They deserve full protection.
The five organisations together appeal for the drop of the three-tiered approach included in the article 13 of the proposed directive to be made compliant with the Council of Europe Recommendation – adopted by the Committee of Ministers in 2014 – which states that “the individual circumstances of each case shall determine the most appropriate channel.” Considering that potential whistleblowers find themselves in a highly sensitive situation at the moment when they decide to blow the whistle, it would be unfortunate to add provisions providing more legal uncertainty than is already the case.
19 November 2018,
Nikola Frank, Head of European Affairs at the European Broadcasting Union
Ricardo Gutiérrez, General Secretary of the European Federation of Journalists
Ilias Konteas, Executive Director at ENPA
Ilias Konteas, Executive Director at EMMA
Wout van Wijk, Executive Director at News Media Europe
Illustration: Piet for EFJ