6 February, 2023

Civil society urges Spanish Senate to amend harmful whistleblower protection bill before it is too late

Whistleblower protection experts Xnet, Whistleblowing International Network (WIN), the Government Accountability Project, The Signals Network and Blueprint for Free Speech want to express their concern for the Spanish Government’s lack of “serious political commitment” to transpose the EU Directive on the protection of whistleblowers.

Tomorrow, the Senate will vote on the draft whistleblowing law to protect whistleblowers (Ley reguladora de la Protección de las personas que informen sobre infracciones normativas y de lucha contra la corrupción) approved on 23 December, 2022 at the last plenary session of the Congress of 2022.

WIN – of which Xnet, the Government Accountability Project, The Signals Network and Blueprint for Frees Speech are associate members – warns that if approved in its current form and without the amendments that Xnet has recommended to the political groups in the Senate, the bill could be disastrous for whistleblowers and even challengeable before the EU.

Anna Myers, Executive Director of WIN and Tom Devine, Legal Director of the Government Accountability Project, state “It is alarming to see policymakers in Spain fail once again to understand the value and importance of protecting whistleblowers as one of the most effective ways to prevent corruption and identify abuses of power early enough to stem the damage. If they did, they would be fighting to ensure Spain had the best law in Europe. Instead, the message to the people of Spain is “speak up at your own risk.”

According to Blueprint for Free Speech’s national population survey, here and here, the majority of Spaniards want real protections for whistleblowers. According to Transparency International’s Corruption Perception Index report (2022), this is the second consecutive year Spain has seen an increase in corruption. The proposed whistleblowing law which should serve as an effective and progressive instrument to fight corruption is now merely a formal exercise to comply with the minimal transposition required by the EU.

WIN and Xnet have outlined to the member of the Senate the main failures of the law:

    • The law only protects the reporting of “serious and very serious” acts, leaving out countless other wrongdoing such as harassment or abuse of power, when all threats or harm to the public interest should be included;

    • Whistleblowers are de facto only protected if they follow official channels. However, the Directive does not specify this at any time. In cases of corruption, this can be a trap. It means that employees who disclose it as part of their job duties will be defenceless, even though this is when the truth is needed the most.

    • The law does not protect from retaliation those who disclose information that is already on the public record public (however partially), a fact that undermines the purpose of any legislation on whistleblowers which is to encourage and to protect the free flow of information for institutional accountability;

    • There is no removal of criminal liability, a fact that would leave cases like that of Antoine Deltour, Edward Snowden, Hervé Falciani, and many others unprotected or without a public interest defence;

    • The draft law does not protect intermediaries – facilitators like expert NGOs – who are necessary in most cases;

    • It does not establish technical requirements for reporting systems and thus discriminates against anonymous reports despite the fact that the bill refers to anonymity under equal conditions;

    • The Independent Whistleblower Protection Authority is to be given overly broad investigative powers without a concurrent judicial mandate and no way to review or appeal their decisions.

More details of the proposed amendments to the law can be found on Xnet’s website.

WIN wrote to the European Commission to warn that Spain’s draft law is not only “dysfunctional” and “unclear”, but that it “violates” and risks “undermining” key aspects of the EU Directive. When Member States like Spain adopt laws that fail to protect whistleblowers as a matter of institutional and democratic accountability, they risk being found non-compliant with the minimum requirements of the EU Directive (2019/1937) and subject to infringement procedures under EU law. Even more importantly, they fail to give people who speak up in the public interest the power to effectively defend themselves against retaliation from the wrongdoers. This runs counter to both the letter of the law but also to Spain’s democratic commitment as part of the EU to protect whistleblowers properly and effectively.