With a document of more than 40 pages, Xnet has contributed to the public consultation of the Ministry of Justice’s that ended today on the transposition of the Whistleblower Directive (https://www.mjusticia.gob.es/es/AreaTematica/ActividadLegislativa/Documents/Consulta%20Publica%20Whistleblowers%205%20ENE%2021.pdf) into Spanish law.
Xnet was the first – and so far the only – organisation in Europe to provide a full transposition, reviewed by the reference organisation Whistleblowing International Network (WIN) of which Xnet is a member (https://whistleblowingnetwork.org/Home). This text was presented as a Proposition of Law in the Spanish Congress of Deputies with the support of more than 15 deputies, both in the XIII and in the current legislature (https://www.congreso.es/web/guest/proposiciones-de-ley?p_p_id=iniciativas&p_p_lifecycle=0&p_p_state=normal&p_p_mode=view&_iniciativas_mode=mostrarDetalle&_iniciativas_legislatura=XIV&_iniciativas_id=123/000003). Its updated text can be found at the following link:
Drawing from its own draft law, Xnet has pointed to some concerning approaches to the consultation and raises key issues to ensure that the transposition of the Directive does not undermine its objectives: the defence of individuals who expose corruption or systemic abuses.
The main highlights are:
• Xnet is surprised that the consultation does not once use the term “alertador” to translate “whistleblower”, bearing in mind that the Minister of Justice himself, Juan Carlos Campo, in one of his very first public interventions made statements explicitly in agreement with Xnet’s petition to the European Commission on the need not to use the term “Denunciante” to talk about whistleblowers (https://xnet-x.net/en/peticion-rectificacion-traduccion-alertadores-recogida-ministro-justicia/). The use of the word “denunciante” which already has a legal definition in Spain and implies that the reporting person is made public and becomes part of the judicial procedure, naturally endangering his or her personal situation. Here we are talking about people who report systemic abuses that have to be looked after by the authorities and who should not bear the burden of a court case. This would limit and undermine the spirit of the Directive:
• Another source of concern is that there is no mention of the protection of facilitators and intermediaries, or family members, such as NGOs, citizens’ platforms, victims or the media, who are essential for the information provided by a whistleblower to come to light. Not considering that those who uncover abuses by the powerful almost always need someone’s help is to deny reality and legislate without taking them into account. It would also call into question freedom of information and undermine the important role of NGOs and citizen groups active in defending the common good.
• It is also disturbing that questions reinforce the idea of narrowing the scope of the law to only a few public institutions and ambiguously mention the private sector. The protection of whistleblowers should not be focused on a specific area or subject matter, but should cover all entities, public and private, including the Royal House and political parties, but also private companies that impact on the bulk of the population. Consider the “tarjetas black” case: if the private sector was to be excluded, it would not be covered by this law.
• As the international organisations that defend whistleblowers keep repeating, it should be remembered that it is extremely harmful to limit the implementation and choice of whistleblowing channels by whistleblowers. There should be internal channels, but they should not be obligatory because this obligation would contradict the current legal system: whoever witnesses a crime should be able to report it. Moreover, the whistleblower should be able to decide which is the safest channel to report the information: internal channel, the authorities’ channel, or NGO or media channels, the latter being a form of protected freedom of expression, as confirmed by the case law of the European Court of Human Rights under Article 10 of the European Convention on Human Rights. Not allowing the whistleblower to determine the most appropriate channel for reporting may deactivate much of the purposes of the directive (https://blogs.publico.es/dominiopublico/33072/la-proteccion-de-las-y-los-alertadores-que-ayudan-a-destapar-abusos-y-corrupcion-no-puede-ser-interpretable-debe-ser-un-hecho-el-caso-de-roberto-macias/).
• Xnet has also reiterated the importance of having specific anonymous reporting channels for reporting abuses. Xnet is a pioneer in Spain in installing anonymous and secure mailboxes in various institutions, such as the Barcelona City Council, Anti-Fraud Offices and Administrations (https://xnet-x.net/en/xnet-buzon-anonimo-generalitat-amb-fgc-lleida-terrassa-mollet-instituciones/). It is important to remember what requirements they have to meet and how to inform about their use in order not to mislead those who use them (https://www.counterpunch.org/2017/11/08/warning-to-spanish-and-other-whistleblowers-anonymous-boxes-which-are-not-anonymous/).