For a Europe-Wide Regulation on Protection of Whistleblowers Reporting Corruption and Malpractice

More details:

Xnet at the Roundtable on Whistleblower Protection

Xnet is a group of activists working, inter alia, in the legal, technical and communications struggle against corruption and also to defend the use of the Internet as a tool to improve democratic quality.

In 2012 Xnet launched “15MpaRato”, a project which became the citizens’ lawsuit that opened up and led the Bankia Case being heard in the Spanish National Court, with the result that more than a hundred politicians and bankers were put in the dock accused of fraud in the bank bailout. Sixty-five of them members of all the political parties and the two leading trade unions (PP, PSOE, IU, CCOO, UGT, employers association…) were recently convicted in the first instance.

This was achieved because, in 2012, Xnet members brought to the attention of public opinion what the press called the Blesa emails, Spain’s biggest ever leak on banking corruption. This took the form of thousands of corporate emails from the former president of Caja Madrid which revealed several cases of corruption.

For years we have operated our own safe anonymous mailbox through which we receive leaks revealing more cases of corruption while also protecting whistleblowers from reprisals.

In order to support vulnerable or exposed people who send us information, we have created the Citizen Group against Corruption in Catalonia and in Spain in order to exchange experiences and create support networks among whistleblowers and against corruption.

We have recently been working with the Barcelona City Hall in order to convey and share this experience. As a result, the City Hall has created and operates its own anonymous and safe whistleblower box. This is the first time that an institution recommends the use by citizens of encryption and anonymity tools like TOR as a means to protect whistleblowers.

In 2015, we produced a Decalogue of recommendations enumerating proposals and changes to be made in the Spanish legislation in order to legally protect whistleblowers and we are working proactively to ensure that these changes happen. In keeping with this stance, we have also led the Spanish chapter of the fight against the most liberticidal aspects of the Trade Secrets Directive.

The situation in Spain

We are in a very difficult situation in Spain. A draft Whistleblowers Protection law is now in the pipeline. Not only will it not work protecting whistleblowers but it would suppose a detriment on civil rights. Its apparently attractive name (“Ley Integral de Lucha contra la Corrupción y Protección de los Denunciantes” -Comprehensive Law on the Struggle against Corruption and Protection of Whistleblowers-) hides seriously dangerous booby traps. Yet, the draft law has been supported by all the parties except PNV (Basque Nationalist Party).

Xnet has begun a campaign in its own to amend this law and has just met with members of parliament from several political parties: En Comú, ERC, Marea, Compromís, EHBildu, Podemos. And other groups in the next few days.

A Little Background

As noted above, Xnet has been a pioneer in Spain in terms of bringing to public attention the fact that whistleblowers must be protected.

We are in the forefront of this field because we ourselves are whistleblowers and because we have created the first self-organisation and training groups for whistleblowers. We are well acquainted with this reality.

Whistleblowers in Spain have mostly revealed cases of corruption and the great majority of these cases are brought to light by members of civil society rather than by people in the institutions.

The impact has been so considerable, especially with the fast-growing interest in these issues after the impetus of 15M-indignados movement, that corruption is now a big focus of political debate. The populist segments of both right and left are co-opting the discourse of the struggle against corruption for their political campaigns and marketing but basically stripping it of any effectiveness.

In this context we are right now facing a very serious attack on civil liberties in the form of the new draft law and no member of parliament has reacted.

We relate here the main points of this law to show its dangers and as a reason to emphasize an EU-wide law is preferable and necessary rather than leaving such legislation in the hands of Member States:
(here the full text of the amendments we propose [in Spanish])

The draft Comprehensive Law on the Struggle against Corruption and Protection of Whistleblowers contains the following aberrations:

It only offers protection for civil servants (career workers in the public sector) while failing to protect people who denounce abuses against the public interest in the private sector or any other sphere that affects public interest, thus producing the absurd situation in which people involved in many of the currently relevant cases would be excluded from protection.

– It creates an independent Public Integrity Authority which:

  • Has the power to “engage in activities of investigation and inspection, for the purposes of
    which it will be able to accede to any information held by public or private natural or juridical persons”. WITHOUT A WARRANT.
  • It is not subject to any disciplinary system and, lacking due supervision, it would have absolute power.
  • It is financed by the “fines it dictates and the penalties it has the power to impose”.

– It does not contemplate the most important protection for a whistleblower, which is preserving their anonymity. Any legislation passed without this option is at variance with United Nations reports and recommendations, instructions from the tax inquiry currently in force in Spain, and advanced legislation in this area presently being introduced around the world. Moreover, it is an excuse for opening files on whistleblowers, thus increasing their exposure and vulnerability.

– It requires a sufficient appearance of veracity which places the burden of responsibility on the whistleblower with a chilling effect.

– It does not stipulate sufficient protection for whistleblowers who are faced with threats, legal prosecution and physical or professional reprisals.

It uses the loaded term “denunciante” which has the negative historical connotations of “informer”. Elsewhere in Europe, for the past three centuries, a different term with positive connotations has been used, as are the cases of “whistleblower” or “lanceur d’alert” (which we translate as alertador in Spanish).

# Specific cases

We have been asked to describe specific cases.

The best-known cases from Spain are, probably and unfortunately, those which are most instrumentalised by the political parties and wielded for the purposes of the cheapest left and right populism. In fact, this heinous law has been presented in the name of these cases, playing the victimisation game in order to score media benefits.

We prefer that less known cases should be taken into consideration because they have not been susceptible to the opportunism of party marketing. In these cases, whistleblowers have been able to organise and defend themselves despite their lack of protection.

Blesa’s emails / Black Cards and Commissions of the Caja Madrid Foundation – Xnet and 15MpaRato: despite efforts by the Spanish legal system to prosecute whistleblowers, our strategy of designed anonymity has thwarted such attempts. The creation and maintenance of a robust community around our projects has also provided the necessary protection and autonomy. The type of retaliation we have suffered in this case is limited to persistent media silence and manipulation by the government and parties, especially Podemos which co-opts and denies recognition because we remain autonomous and won’t “come under” its auspices. We have remedied this silence with a theater play which has now been seen by almost 10,000 spectators.

Encarnación Cortés: As a councillor in Benalmádena, she has had to deal with institutional harassment after refusing to resign after denouncing corruption. Her husband went bankrupt because of targeting of his business. We did capacity-building work with her and made her a strong public figure of the fight against corruption. After that, Cortés not only held her ground and was re-elected, but she also achieved the resignation of the municipal government and brought several cases of corruption to trial.

Itziar González: From 2007 to 2009, she was a Barcelona city councillor for the Ciutat Vella District but resigned after denouncing a case of urban planning corruption. She is still being persecuted and has been unemployed for six years.

Joan Llinares: he was named director general of the Catalan concert hall, the Palau de la Música, shortly after a case of corruption began unfolding in this institution. After his internal work Catalonia’s most serious case of corruption came to light. He was persecuted for a long time and took refuge in agricultural work although he held a post in the public service. He now heads the Transparency Office of the Barcelona City Hall and we have worked with him in opening the city’s safe mailbox for receiving anonymous information against corruption and abuses.

Lieutenant Segura: a former lieutenant in the Spanish army, he was discharged after thirteen years of service in the Armed Forces when he reported corruption in the highest echelons of the army.

On the project of Europe-wide regulation

With regard to the European Commission’s Public consultation on whistleblower protection we are concerned about some aspects:

– It tends to focus on members of professional organizations and sectors. This is a serious problem since it leaves unprotected any consumer, user or regular citizen who blows the whistle but does not belong to these organisations.
Given the great number different shapes of cases of corruption and abuses and their wide-ranging characteristics, it is important that any citizen who denounces malpractice affecting public goods and commons should receive adequate protection and not only in relation with his or her profession.
The greater attention received by journalists and workers in the consultation and, in general, the approaches taken in the design of whistleblower regulation is a result of the commendable struggles of these professional groups. However, we believe that, in this digital age, these fights should be solidary and united with the general struggle of civil society to manage its own destiny and monitor its institutions in the fullest conditions of democracy.

The bias towards professional groups is even less acceptable in Spain where the big unions have, in many cases, been accomplices in cases of corruption.
In the case of the Black Cards of the Bankia scandal that we are leading, for example, we have recently achieved the convictions of ten trade unionists (more or less 10% of the accused).

– It does not take into account the most important protection for a whistleblower, which is the possibility of remaining anonymous.

– As we have already stated with regard to the Trade Secrets regulations, we want to draw attention on the danger of a legal doctrine that keeps hinting at conditions: the requirement of a whistleblower’s “good faith” is absurd. Any information that can reveal cases of corruption or abuse has the same public interest, whatever the whistleblower’s initial intention may have been. It places the burden of a “good faith” proof on whistleblowers, having a chilling effect on them and hindering the possibility of using in advantageous time the evidence whistleblowers have supplied.