Authors: Bernardo Regodeiro, Dussu Djabula and Raquel Burgoa Dias
Bernardo is a third-year University of Lisbon School of Law student. Bernardo was born in Lisbon, Portugal. Since he was young, he showed interest in the matters of Public, International and European Law. Bernardo, for that matter, has a particular interest when it comes to subjects like corruption, transparency and, of course, whistleblowing. Dussu is a second-year NOVA School of Law student. Dussu was born at Guinea-Bissau, although she spent most of her life in Portugal. She’s currently in many youth associations that promote justice and fairness, such as HeForShe and BETA Portugal. Through her educational endeavours Dussu found Law to be the right path for her, as it is a means to guarantee a more equal world. As much as she can she brings awareness to Human Rights and its importance. Raquel is a second-year NOVA School of Law student. Through her various activities, such as HeForShe and the Students Union of NOVA School of Law she’s developed a critical view of the world which fuels her interest for Law, the promotion of a greater understanding of Human Rights, and for International Law.
1. Initial considerations
The whistleblower statute is becoming a recurring theme on the political and legal spheres. Specifically in the European Union (EU), we are witnessing a great surge in the development of new legislation regarding whistleblowers.
In recent years, we have seen a drastic rise in corruption crimes. More often than not, when such crimes are reported, becoming scandals, they gather relevance for quite some time, igniting now and then the anti-corruption debate, even if in most cases the alleged perpetrators are never brought to justice and generally the ones receiving punishment are those who revealed the information. We have seen that happen with scandals like ‘Lux Leaks’ or ‘Panama Papers’.
Whistleblowers play a crucial role in the satisfaction of public interest when disclosing relevant information. When whistleblowers act, exercising their freedom of expression, they usually look upon the consequences that may arise from the disclosure of information they are about to make. The outcome and the reactions to their actions may vary, but it is possible that some of them face retaliation as a result. Thus, as we carry out this investigation, the protection of whistleblowers is a subject of utmost importance.
Additionally, whistleblowing, when undertaken in good faith, functions as a means of exercising freedom of expression. The European Convention on Human Rights (ECHR), in its Article 10, understands that whistleblowing is permissible under the conditions provided. It is logical for that matter that the disclosure of knowledge related to some forms of wrongdoing or misconduct ‘is a natural extension of the right of freedom of expression, and is linked to the principles of transparency and integrity.’ This particular piece of legislation serves as an outstanding tool to link whistleblowing to freedom of expression, thereby justifying the revelation of inside information as pivotal to the reinforcement of accountability above all else.
Before October 2019, both on European level and national level this theme was sparsely regulated. At that time, the United Kingdom had already created such legislation. Implemented in 1998, the Public Interest Disclosure Act was one of the first laws to appear in the world that had to do with this particular subject. Scholars applauded its tenacity, the innovation it brought to the Human Rights discussion and the way it influenced the development of legislation regarding the protection of whistleblowers in other countries.
Besides that, the United Nations (UN) also contributed to this discussion with the adoption of the United Nations Convention against Corruption (UNCAC) in 2003. The UNCAC explicitly provided in its Article 33 that the signatory countries should take action into making any kind of legislation in regard to protecting whistleblowers as a way to combat corruption and fulfil the purpose of this convention. Bearing in mind that all EU Members States signed and ratified the UNCAC, very little was done since then. Few EU Member States, and even fewer countries worldwide, took this seriously.
There was EU legislation that included occasional references to whistleblowers though never covering it wholly. A good example of that is the Article 5 of the Directive 2016/943 that exempts Member States to take any measure when the revelation of a trade secret (by a whistleblower) includes the disclosure of ‘misconduct, wrongdoing or illegal activity’, as long as the ‘respondent’ was acting towards the goal of ‘protecting the general public interest.’
Indeed, prior to this moment the EU did not implement any law, regulation or other kind of legislation concerning directly whistleblowers. That would change with the entry into force of the Directive 2019/1937 which is perhaps one of the most (or even the most) comprehensive laws there is that has to do with the subject of whistleblowers.
At this point, we have a concrete definition of what a whistleblower is and does but it was not always like that. When this regulation was not comprehensive enough, being in turn fragmented, almost non-existent and causing uncertainty, a conceptual discussion was sparked. Today, the statute of whistleblowers (referred as ‘reporting persons’ by the Directive in question) defines certain people as those who ‘work for a public or private organisation or are in contact with such an organisation in the context of their work-related activities’and report breaches of information, that might be related to corruption or related crimes.
Hence, this is our starting point. We will proceed to analyse this Directive’s importance as well as overview the way it is going to impact the current Human Rights scenario. Furthermore, we are going to focus our investigation on the scope of the protection of whistleblowers in the Portuguese legal system and the changes that may be brought by this Directive. For a better understanding we will also dive into some relevant and pressing jurisprudence in the European Court of Human Rights (ECtHR).
Although Portugal ratified the UNCAC, becoming obliged to set legal protection regarding reporting persons, and being a member of the Council of Europe, thus subscribing to the ECHR, there is practically no legislation that has to do with such protection, except for a couple of laws implemented in 1999 and in 2008.
With that in mind, we will consider the impact that this Directive will make in the Portuguese legal system, predicting the possible effects and submitting for that matter some recommendations.
2. The current Portuguese jurisprudence and the expansion of freedom of expression with Directive 2019/1937
2.1 Legislative context
2.1.1 Article 4 of the Law no. 19/2008, of 21 April, and Law no. 93/99, of 14 July
In our legal system, there is a single provision that specifically and expressly deals with the protection of whistleblowers of corruption and related crimes: Article 4 of the Law no. 19/2008, of 21 April.This Article enshrined certain guarantees for Public Administration workers who reported cases of corruption of which they were aware in the context of performing their duties or because of them. It was anticipated that these officials could not be harmed in any way, including non-voluntary transfers. It was presumed to be abusive, until proven otherwise, to apply disciplinary sanctions to them within one year after the complaint and their anonymity was guaranteed until the indictment was deducted, as well as the transfer if requested by them.
Subsequently, this Article 4 was amended by the Law no. 30/2015, of 22 April, and now also covers private sector workers and provides for the possibility for whistleblowers to benefit from the regime for the protection of witnesses in criminal proceedings, provided for in Law no. 93/99, of 14 July.
In this Article is blatant the problem of the ‘recipients’, because only considers the ‘works’, forgetting the trainees, volunteers, etc. In addition, the types of reported infringements and the recipients of the complaints are not specified, making it difficult to efficiently apply this Article.
In paragraph 2 of this Article in question there is a presumption that the sanction that may be imposed on a worker-whistleblower is abusive when this sanction has been applied within one year from the date of the complaint. A true reversal of the burden of proof is foreseen, in a legislative option that is recommended by several European and international sources.
2.1.2 Law no. 83/2027, of 18 August
Law no. 83/2017, of 18 August provides for a set of measures for the protection of whistleblowers, such as the protection of their (as well as the defendant’s) data, the confidentiality of their identity at all times or until their knowledge is required to safeguard their rights. The defence of the accused (it is understood, at the time of the accusation), and the prohibition of the entity to threaten or practice hostile acts, perpetrated in the workplace or even outside it, to the complainant. It establishes that reports cannot, by themselves, serve as a basis for the promotion of any disciplinary, civil or criminal proceedings in relation to the complainant, unless they are deliberately and manifestly unfounded. Finally, it provides that entities must create their own channels for denouncing irregularities and violations of the law (Article 108 of the Law no. 83/2017, of 18 August).
2.2 The jurisprudence perspective: the case Bargão and Domingos Correia v. Portugal (ECtHR, 2012)
This case deals with freedom of expression and the defamation retaliation that whistleblowers are subject to, even if the relationship of these individuals with the case does not fit into a work context.
Thus, Bargão and Domingos Correia addressed a letter to the Ministry of Health reporting a situation in which a support and surveillance assistant at the health centre, did not comply with the defined schedules but received the monthly fee in full. In addition, the individual allegedly committed abuses of power, favouring certain users of the health centre over others.
The ECtHR made a rigorous analysis of the whole case and referred to it as ‘an imperative social need.’ The ECtHR recalls, following the Guja v. Moldova case (ECtHR, 2008), that when the right to provide information on matters of public interest is at stake, the reports of internal situations must be protected. In this sense, the ECtHR decided in the present case to go further and extend the same protection to situations communicated by users of public services. The ECtHR stresses that the report from the plaintiffs has been formulated and should be a reference for all judges, a good example of what cannot be considered offensive. The complaint served the purpose of reporting a serious crime, abuse of power.
ECtHR unanimously concluded the importance of the right to freedom of expression on matters of general interest, the right of civil servants and other employees to denounce illegal conduct and irregularities in their workplace. The interference with the applicants’ freedom of expression was not necessary for a democratic society. As a result, Portugal was sentenced for the violation of Article 10 of the ECHR.
In practice, a high level of certainty was reached and the validity of the freedom of expression was renewed. For that matter, the Directive 2019/1937 considerably reinforces the protection of the reporting citizen and the public interest, bringing benefits to the fight against corruption, opening a new perspective and hope for strong protection of the public debate and freedom of expression. In addition, it favours an inter-jurisdictional dialogue and should start with the protection of the reporting persons and only afterwards to find out if a restrictive interference in the field of that freedom is justified.
2.3 How the new Directive ensures the enforcement of Article 10 of the ECHR
The ECHR was not the first international proclamation of Human Rights, however, it was still groundbreaking for being the very first legally binding treaty on Human Rights. All the participating States were required to respect its provisions, furthermore, it established the ECtHR.
The right to freedom of expression has been reiterated by the ECtHR in such a way that it should be given special attention. The convention successfully establishes a minimum standard that all states must comply with, at the same time, the states are responsible and have the liberty to protect the right how they see fit with their legal system. Freedom of speech and information is protected in Article 10 of the ECHR.
The Directive 2019/1937 seeks to establish minimum standards for all Member States to follow, as a way to enhance the mechanisms in place to provide greater protection to the persons that report breaches of Union Law. By setting the minimum standards the Directive leaves a margin to all Members State to extend the reach of its content.
Directive 2019/1937, by protecting whistleblowers, protects Human Rights, and upholds Article 10 of the ECHR. Nonetheless, whistleblower protection laws came about through an anti-corruption agenda, not a human rights one, as Vandekerckhove notes. This means that whistleblowing isn’t recognized as often as it should as a fundamental human right of freedom of expression. The right to freedom of expression includes the right to both receive and impart information and so has critical significance for workers who wish to raise public interest matters.
When a whistleblower denounces a possible breach of law they pass on information, therefore it must be covered by the right to freedom of speech and information. Whistleblowing ensures an open debate, imperative to informed decision-making.
Whistleblowing has a materialisation of freedom of expression has to be understood has a limited right, it is not absolute. An interference with a whistleblower’s right to freedom of expression can be justified. The paragraph 2 of the Article 10 of the ECHR makes this clear, whistleblowing might be restricted in some circumstances with proper justification. In cases of restrictions the Court is the entity that can better evaluate the correct or incorrect usage and application of restrictions to the right.
A case that exemplifies the court’s competence is Hertel v. Switzerland, 1998, in which the Court acknowledges that freedom of expression is essential to a democratic society and ‘the need for any restrictions must be established convincingly’. According to the Court’s judgment when using the term ‘necessary’ it should imply the existence of a ‘pressing social need’. It might be the Court’s decision to rule at last if a certain restriction is with accordance with Article 10, but the Court does not have has an objective to ‘take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation’.
3. Will the new Directive change the outcome of whistleblowing cases in Portugal?
It is questionable that an immediate change is going to take form in Portugal. We should bear in mind that the current examination that is being undertaken stems primarily from the implementation of the Directive 2019/1937. After all, it is a Directive, it establishes guidelines addressed to the Member States to comply and create coherent legislation.
The EU Member States have until the end of 2021 to transpose this Directive. At the moment, Portugal has not yet begun the process of transposition. It has been roughly four months since the implementation of the Directive 2019/1937 by the EU, so surely it seems quite early to discuss a potential lack of political motivation in that sense.
However, Portugal is going through a key moment when it comes to corruption and whistleblowing. ‘Football Leaks’ and ‘Luanda Leaks’ are two remarkable scandals which will unquestionably entail serious repercussions nationwide. These scandals were allegedly triggered by the hacker Rui Pinto and so far, he has been kept in temporary custody for over a year facing charges of more than 90 crimes. Although at first glance Rui Pinto may appear as a whistleblower, there is an ongoing debate on his characterization in these cases. Despite that, there are strong indications that this hacker was behind the disclosure of information regarding such scandals, but we should bear in mind that he has also been charged with the crime of extortion.For now, Rui Pinto serves as someone who revealed relevant information regarding corruption and not as a whistleblower single-handedly.
This crucial moment should make Portugal take action on the subject of whistleblowers. More and more reports are being made and so, the transposition of this Directive is urgent, considering that Portuguese legislation in this sense is almost non-existent.
Hence, it is relevant to question whether the Directive 2019/1937 will or will not change the outcome to cases of whistleblowing. All comes down to the way Portugal will handle the transposition of this Directive.
If Portugal proceeds to a complete and coherent transposition an efficient protection will certainly be ensured, assuming that such transposition respects the two essential elements of the protection of reporting persons (the burden of proof and the prohibition of retaliation). In that case, those who are reported should, on the one hand, be accountable and, on the other hand, prove their innocence. From then on, if the report is substantial enough to incriminate the reported person we could see an improvement when it comes to solving cases of corruption and related crimes because in such scenario investigations will necessarily have to take place.
Ultimately, this will help pursue a real and meaningful fight against corruption, putting a significant effort in channelling our resources into discovering the truth instead of seeking the punishment of those who exercise their freedom of expression when reporting misconduct or wrongdoing.
Otherwise, conceding that Portugal does not proceed to a full transposition of the Directive 2019/1937, disregarding for that matter the subjects of burden of proof and prohibition of retaliation, it is doubtful that such legislation will change the outcome of these cases, thereby changing the course of investigations, never mind the chance that those will not even be initiated.
The way in which the outcome of these cases may change will indeed depend on how Portugal observes this Directive’s guidelines, specifically when it comes to the burden of proof and the prohibition of retaliation.
As previously stated, we are examining a Directive along with its potential impact on corruption cases. It should be emphasized that by definition this particular piece of European legislation is vague. A Directive is addressed at Member States to comply them to create consistent legislation based on the goals and objectives set by it.
That does not prevent Member States from going further and conceiving even more comprehensive legislation, beyond the letter of the Directive 2019/1937. It would be desirable that those that have not yet any legislation in this sense to go further. This Directive (or any Directive for that matter) should not be looked upon as an end on itself but as a concrete set of topics that guide Member States to adjust European legislation into their own legal systems.
Notwithstanding the undisputable innovation this Directive brings as far as this legal subject becomes more harmonized within the EU, that is not enough. Therefore, if Portugal proceeds to a full transposition that does not guarantee an effective protection of reporting persons in its legal system. In this particular case, the sheer transposition, even though it appears to be a full transposition, of the Directive 2019/1937 into the Portuguese legal system will not fix the poor regulation concerning protection of reporting persons.
4. The future and recommendations for Portugal
The general principles of whistleblower protection stem from recent political developments. For this reason, it is not possible to find them using internal legal instruments or historical texts. The principles can be found in diplomas of both soft laws (not binding on States) and hard law (binding on States). Of primary importance are the diplomas that constitute hard law. With this scenario in mind, we cannot underestimate the importance of Directive 2019/1937, that is a diploma of hard law.
The Directive presents reflected and well-founded constructions on how to more effectively address the problem of whistleblower protections in the EU. Portugal, as in the case of other European countries, does not have a specific framework for the protection of whistleblowers. The current legal framework is provided for in several Articles dispersed in the legislation of criminal procedural law and labour law. In this respect, Portuguese law is characterized by fragmentation and ambiguity, without uniform precepts or clear definitions.
Throughout Europe, as well as in Portugal, there is a clear need for a revision of the legal framework, and in light of media cases of financial crimes that are reported by whistleblowers. In this sense, it is indispensable to comprehend what the next steps in the Law should be, and what type of policies should Portugal implement in order to close the loopholes in the whistleblower protection.
To this end, and looking closely at the 2013 report of the Civic Association Transparency and Integrity,there is an absence of specific, comprehensive regulations for the protection of whistleblowers. Nevertheless, we believe that this specific point, starting with this new Directive, will be overcome. The absence of a specific organization or committee to receive complaints and monitor the situation of whistleblowers is also an issue to be resolved. Additionally, we mustn’t forget the severe susceptibility of whistleblowers to certain accusations such as damage to honour and public image, defamation and injury.
Moreover, there is still a negative social perception of whistleblowers and justice in general, explaining in part the reluctance to report. Finally, the little legal protection that is granted to whistleblowers in Portugal does not expand properly to whistleblowers in the private sector and certain whistleblowers in the public sector, not covered by Article 4 of the Law no. 19/2008, of 21 April.
By carefully analysing Directive 2019/1937 itself, it is also possible to withdraw other recommendations to be followed in the Portuguese legal system. First, it is necessary to establish that, as the Directive is a mechanism to provide minimum protection to whistleblowers, it is highly imperative that Portuguese law goes beyond what is required, as a way of granting complete and a fair protection to whistleblowers.
Portugal should, with the same clarity as the Directive, define the scope of protection for whistleblowers, without having to specify whether it is for the public sector or the private sector, since, a more relevant aspect is that the information was obtained in a work-based relationship as established in paragraph 1 of Article 4 of the Directive 2019/1937. Interestingly, the Directive goes further and grants protection in cases including facilitators, legal entities and even third parties.
Moreover, it will also be crucial to define in Portuguese national law what is a ‘reasonable suspicion’, which may be either an indeterminate concept (concepts that contain notions of indeterminate content), which must be filled in by the interpreter; or even a general clause, which are characterized by their high level of openness, which allows a great degree of variability. In our perspective the concept of ‘reasonable suspicion’, appears to be more correct to be understood as a general clause, which in turn guarantees greater fairness in the courts.
Another recommendation to be addressed is in Chapter II of the Directive, which establishes the obligation of all Member States to create internal and external mechanisms for persons reporting. We draw particular attention to Article 8 of that same chapter. Therefore, Portugal is compelled to create its own channels for complaints, and according to the nature and subject of the complaint there may be different channels.
In this context, we cannot neglect the importance of external channels because sometimes the problem that is being reported lies in the internal means of communication. This type of reporting channels should be implemented equally for both the public and private sectors. According to the 2013 Transparency Report, the installation of a system of hotlines or helplines increases the ability of organizations to detect fraud.
In order to guarantee the effectiveness of these same mechanisms, a central authority for the protection of whistleblowers and witnesses, competent for receiving and handling complaints, must be created. This authority should be able to ensure the safety of whistleblowers, but also provide legal advice to potential whistleblowers. The employees of this central authority would have to be bound to confidentiality.
Although the suggestions make the protection of whistleblowers more effective, based on the 2013 report by the Civic Association Transparency and Integrity, this kind of recommendations presents several implementation difficulties. The first is to ensure a correct system of checks and balances, in order to avoid the abuse of protection rules while guaranteeing the defence of the citizen who is in good faith. The second is to fulfil the final goal, which is to provoke a cultural shift, in such a way that can change the mentality of citizens in the face of ethics at work, in business and in society in general.
An adequate whistleblower protection guarantees a greater control and monitoring of illegal and criminal behaviour both in the public sector and in society at large. As mentioned in a study commissioned by the European Parliament,a single solid complaint over a period of several years may more than justifies the effort to implement a whistleblower protection and support program.
It does not seem strange that it was suggested that in order to ensure the protection of reporting persons, provided for primarily by the UNCAC, the EU would eventually need to take action.
Moreover, we are being continuously blasted by more and more corruption scandals. Up until this point, regarding the protection of whistleblowers, we had a legal vacuum allowing criminals to remain unpunished.
The Directive 2019/1937 brings, without a doubt, a significant change to the EU and Portugal. In the same way that the legal vacuum regarding the lack of whistleblower protection affected the EU in general, such absence in legislation makes up one of the main flaws in the Portuguese legal system when it comes to fighting corruption.
Citizens who, in good faith, raise concerns relating to suspected corruption and/or abuse of power often become victims of their own reports, suffering enormous personal and professional pressures and, at times, severe repercussions, such as retaliation. This Directive will in some way push Portuguese lawmakers to create a solid and structured legal framework regarding the protection of reporting persons, that will give citizens a powerful weapon to oppose corruption.
Looking at the paradigmatic cases of whistleblowing, such as the one involving WikiLeaks and Edward Snowden, we see similar stories to those who take place in Portugal. Those cases always seem to make us witness a display of great personal sacrifice; as a result, sadly we often learn about whistleblowers who suffer threats or some other form of retaliation from States’ apparatus.
Thus, the complaint is seen as an effective means for the detection and prevention of crimes. The act of reporting underlies in fundamental democratic values, such as the freedom of speech and information, public interest and the rule of law. Reporting wrongdoing contributes to the accountability of the reported agents and ultimately improves transparency and integrity, vital to any society.
The report is important to the prevention, detection and repression of crime and functions as some sort of dispersed inspection instrument, under which citizens have the right (and duty) to report legal irregularities they are aware of, in what constitutes a reflection of the democratic and active citizenship principle.
Even though, Portugal ranks 30th worldwide, alongside Spain, Barbados and Qatar, in terms of corruption perception, in accordance with the latest data provided by Transparency International, there are pressing issues to resolve within its legal system. Ensuring a real and effective protection of reporting persons is decisive to make Portugal a less corrupt country.
Furthermore, we should not forget that Portugal stands on a unique position when it comes to diplomacy and trade with its former colonies. In that sense, Portugal is not just another country in Southern Europe, it serves as a bridge that links Europe to Africa and South America.
In light of the ‘Luanda Leaks’ scandal, the World is regarding Portugal as lenient and compliant with money laundering, either because the legal means are insufficient and ineffective, as we have previously exposed, or the corruption perception is not as exhilarating as we think it is. So, as we can see, the protection of whistleblowers is just the tip of the iceberg when it comes to the problem of corruption that Portugal faces.
Portugal must create a strong and comprehensive legal framework in this sense. As we showed, a full transposition of the Directive 2019/1937 does not suffice. A system of detection and prevention of criminal behaviour regarding corruption is in great need.
Although the Directive 2019/1937 is a great step in this discussion, there is much more work to be done by the EU and Portugal.
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 See n 24.
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