[This legislation is in process of collective and international amendment until April 30, 2018 – If you want to send amendments or observations, we ask you to do it in the form of an exact rewording of the parts you want to change. Send it to -> firstname.lastname@example.org
Once it will be amended, this text wants to be an exhaustive base to create legislations to protect whistleblowers adapting it to the needs, culture and context of each country, nation or region. We invite you to present it in your parliament for its implementation.
License: as we have done in the explanatory statement where all the works that inspired the text are reviewed, when you adopt it we ask you to recognize the authorship of the source, in this case Xnet.
Other related information -> Proliferation of safe and anonymous mailboxes that are not: https://www.counterpunch.org/2017/11/08/warning-to-spanish-and-other-whistleblowers-anonymous-boxes-which-are-not-anonymous/]
PROPOSED TEXT OF THE DRAFT LAW ON FULL PROTECTION OF WHISTLEBLOWERS
The present Law, then, aims to contribute towards consolidating systems monitoring and reporting irregularities in the public and private spheres, and providing in both domains consistent protection for whistleblowers who, when it would seem that the public interest is harmed or threatened, disclose information concerning wrongdoing in the public adminis-tration and in private companies or entities. A further objective is regulating internal and external channels of disclosure in branches of the administration and private companies or entities, establishing which obligations must be met by those responsible in the public and private spheres, and also the consequences which might derive in the penalty system from their non-observance, in order to put an end, with these measures, to systematic abuse.
The present draft Law has been drawn up by Xnet* – activist group that works in the re-newal of democracy – on the basis of the “Decalogue for the Protection of Whistleblowers” of the Citizen Group against Corruption of which Xnet is a founding member and, as re-cognised in our legal system, the principle concerning the duty of every citizen with know-ledge of the perpetration of a crime to make it known to the authority concerned (in Spain established in articles 259 and 262 of the Criminal Procedure Act). This draft Law has been drawn up including, adapting, and updating several sources, among them texts being used or discussed in other thematic areas and geographical locations. Noteworthy among these texts are the On Prevention of Corruption Act No. 1700-VII (Ukraine, 2014), the Protected Disclosures Act (Ireland, 2014), the Dutch Whistleblowers Act (The Nether-lands, 2016), the Whistleblower Protection Act (Hellenic Anti-corruption Organization, Greece, 2017), Whistleblowers of the organisation Blueprint for Free Speech, las recomendaciones de – entre otros – Whistleblowers International Network, European Center for Whistleblower Rights, Public Concern, Whistleblowing for Change, Courage Foundation, Expose Facts, …..the Spanish Organic Law 19/1994 of 23 December, on the Protection of Witnesses and Expert Witnesses in Criminal Cases and, to the extent that it has been taken as a reference, its model for full protection of victims, Organic Law 1/2004, of 28 December, on Comprehensive Protection Measures against Gender Violence.
In the sphere of public administration, the functioning of which is governed by principles of legality and effectiveness of the government authorities, and also in that of private busi-nesses whose size or turnover affects rights and the interests of the vast majority of the societies in which they operate, transparency should be the norm and secrecy the excep-tion.
Cooperation from citizens and organised civil society groups in reporting irregularities is one of the most effective measures for exposing and combating corruption and abuses which affect the whole society. Besides the moral, legal and political problems entailed by this, there are also technical problems and, as such, they need to be approached prag-matically in order to deal with them specifically and efficiently.
The expressed wording of Article 259 of the Spanish Criminal Procedure Act stipulates the obligation of any person who is witness to the perpetration of any crime against the public interest to report this immediately to the nearest trial judge, justice of the peace, at the regional or municipal level, or to a tax official. Moreover, Article 264 of the Act establishes that any person who, by any means not included among those mentioned in the preceding articles, has knowledge of the perpetration of the type of offence which should be pros-ecuted de ex-officio must report it to the Public Prosecutor, the Court with jurisdiction in the matter, a trial judge, a municipal judge, or police authority. However, it is not stipulated that the person reporting the offence must provide proof thereof or bring a formal lawsuit against the offender.
But as a general rule, whistleblowers who report wrongdoing do so at considerable per-sonal risk and, accordingly, pay a high personal and professional price, although reporting misconduct is essential for protecting the public interest as well as supporting accounta-bility and integrity in both public and private sectors.
Hence, it is necessary to have a law which protects anybody who is privy to any kind of wrongdoing so that this person would be able to provide relevant evidence without re-prisals. Without such protection, whistleblowers and people who assist them face any kind of possible retaliation—from lawsuits for alleged calumny and defamation, protection of personal data and intellectual property of embezzlers, through to harassment, mobbing and dismissal in the case of employees or executives in public and private corporations. They are subject to an overwhelming burden of costs and a variety of forms of injustice which deter most people from reporting or making known unlawful conduct, irregularities and crimes.
Moreover, the difficulties entailed in providing proof and paying the costs of legal proceed-ings reveal a situation of considerable asymmetry of power between citizens and institu-tions and corporations which, de facto, ensures that people will be unable to do their duty as citizens in reporting crimes of which they have knowledge, or to disclose improper con-duct, wrongdoing, and illegal activities.
The Law proposed here aims to strengthen monitoring and reporting systems for cases of wrongdoing in the private and public spheres. These are already offered in general by the legal system in the forms of witness protection and expert witnesses, but it is also deemed necessary to express and offer consistent protection to whistleblowers and facilitators or, in other words, any person who reports threats and wrongdoing that could harm the public interest.
Legislation for protecting whistleblowers have existed in the Anglo-Saxon world since 1778. However, the first legal definition of the term “whistleblowing” came after Ralph Nader, the American political activist noted for his involvement in consumer protection, gave the term positive connotations in 1972 when he defined it as “an act of a man or woman who, believing that the public interest overrides the interest of the organization he serves, blows the whistle that the organization is involved in corrupt, illegal, fraudulent or harmful activity”.
A 2014 EU Anti-Corruption Report (3 February) estimates that, “Corruption alone is esti-mated to cost the EU economy EUR 120 billion per year, just a little less than the annual budget of the European Union”. Public procurement is one of the areas of government that is most vulnerable to corruption, costing the EU 5.3 billion euros every year. The re-port also notes that, “Adequate whistleblowing mechanisms that codify processes within public administrations to allow official channels for reporting what they may perceive as irregularities or even illegal acts can help overcome detection problems inherent to corrup-tion (and indeed in other areas).” These areas include basic rights.
A 2016 “Global Fraud Study” by ACFE (Association of Certified Fraud Examiners) which analyses more than 2,400 cases of fraud in 114 countries calculates that some 40 per cent of these have been disclosed by whistleblowers.
On 24 October 2017, the European Parliament adopted a European-wide resolution on legitimate measures to protect whistleblowers acting in the public interest when disclosing confidential information of companies and public bodies which gives evidence of irregulari-ties and crimes. The European Court of Human Rights interprets reporting of wrongdoing in the public interest as a form of freedom of expression as enshrined in Article 10 of the European Convention on Human Rights, which is ratified by all EU member states.
Consequently, legal protection of whistleblowers is also reflecting the aim pursued in Arti-cle 151 of the Lisbon Treaty, taken in relation with Article 153, 1b, referring to “working conditions” and the EU law protects whistleblowers in its Directive on Money Laundering and Terror-ism Financing.
The report pertaining to the Resolution “Legitimate measures to protect whistle-blowers acting in the public interest”, approved in the European Parliament on 24 October 2017, includes some very important recommendations, as reflected in the law, for measures contemplating the possibility of anonymous reports of wrongdoing, the possibility of direct disclosure to third parties including members of the press or NGOs, in addition to meas-ures concerning professional, legal, physical and economic protection for whistleblowers reporting corruption and misconduct. The Resolution contemplates strong, horizontal pro-tection of whistleblowers, embracing public and private sectors in order to favour the struggle against corruption and fraud and to reinforce justice, health, the environment and democracy.
The use of technological tools now enables more efficient protection of confidentiality and anonymity for individuals providing information in the public interest. This is one way of remedying the aforementioned asymmetry of power. It is necessary to protect the ano-nymity of private individuals because they become vulnerable when they expose them-selves for the good of society.
The difference between anonymity and confidentiality resides in the fact that anonymity is the only way a source of information can wholly manage her or his own protection and the use that is made of the information. The weaknesses and porosity of reporting systems based solely on confidentiality have been amply demonstrated. Besides, there are addi-tional and evident dangers in centralising all the power (information) in just a few hands, namely those of company directors and senior office holders in the public administration.
It is obvious that companies and institutions must meet their obligations for transparency and implement systems for monitoring irregularities. However, even so, it is not possible to avoid abuse by trusting in some sort of self-regulation since fraud and corruption tend to be located in the privileged echelons of these internal systems. Hence, we must take advantage of the opportunities now being held out by technology and outline channels enabling a distributed citizen monitoring and disclosure.
Anonymity is the only real protection that can be offered to a citizen whistleblower. This has been recognised by the Public Prosecutor in Spain since 1993, and also in a range of provisions in the legal system as a just and necessary type of channel. A similar view is taken by organisations like the United Nations, for example in its 2015 Report on Encryp-tion, Anonymity, and the Human Rights Framework.
The draft Law presented here is divided into five titles, starting with an Introductory Title, which explains that the aim of the Law is none other than to establish measures for the protection of people who disclose information concerning illegal or bad practices which jeopardise the public interest. A related objective is to regulate channels for internal and external reports of wrongdoing in the administration, companies and entities, as well as the consequences which might be incurred by non-observance in the domain of penalty procedure, and thereby aspiring to introduce measures that can be applied from a position of social consensus to put an end to systematic abuse from the ethical, democratic, legal and social perspectives.
Title I, General Provisions, defines the subjective scope of the Law’s application (Chapter I), for example the kinds of information constituting whistleblowing for the enforcement purposes of the Law, and which people are deemed to be whistleblowers and facilitators (Chapter II). These specifications aim to extend protection not only to whistleblowers who are privy to information concerning fraud and corrupt practices in the public and private corporations covered by the present Law, but also to whistleblower facilitators, these in-cluding physical persons and legal entities such as NGOs, citizen platforms, and the me-dia, inter alia, which permit or enable a disclosure made by a whistleblower or any person reporting wrongdoing. Using facilitators as a cover is a common practice among whistle-blowers and anyone reporting wrongdoing when they find someone who will guarantee their anonymity and offer some protection of their person and their family. Hence the Law’s primary objective, in accordance with the system of guarantees for whistleblowers, is also to offer protection for disclosers and facilitators involved in the case.
Chapter I of Title II stipulates the rights of and guarantees for whistleblowers and facilitators reporting wrongdoing, from the basic right of personal and family security (Article 6) to the right to confidentiality and anonymity as the whistleblower’s basic tools (Article 7), in addition to the right to information and case files, and to attend procedural actions resul-ting from reporting wrongdoing (Article 8), and the right to free legal advice (Article 9) as guarantees of being able to face legal procedures that might be initiated against the whis-tleblower as a consequence of disclosures of wrongdoing and that would otherwise consti-tute an economic impediment to reporting fraud, corruption and other crimes.
Chapter II details specific measures for protecting the employment and economic activity of whistleblowers as these tend to be the most usual targets in reprisals when citizens report wrongdoing. The fact that a whistleblower might be part of an organic or corporate structure that is affected by irregularities or unlawful activity is taken into account, as is the possibility that this may not be the case, or that the whistleblower may be self-employed.
Chapter III, concerned with the other side of this system of rights and guarantees, estab-lishes a liability regime concerning responsibility of whistleblowers who are thus required to be reasonably convinced of the credibility and reliability of the information they report or reveal. Hence, while the burden of proof of possible crimes or activities against the public interest must fall on the organism or institution in charge of the inquiry and not on the whistleblower, any person who, aware of untruths or inaccuracy in the information dis-closed and using the whistleblower system to convey false information, will be held re-sponsible. This behaviour will be punished precisely by means of this Law with the ex-press aim of not detracting in any way from citizen support which has proven to be indis-pensable in the struggle against corruption and is therefore worthy of protection.
Title III is concerned with information systems and reporting channels for disclosure to be used by whistleblowers, giving priority to their freedom of choice (Article 15) and respect-ing the pace of introducing internal systems for reporting wrongdoing in corporations and public and private entities, while always guaranteeing that the channels made available to whistleblowers will be anonymous and secure and, failing that, ensuring that they are in-formed of the absence of these assurances (Article 16.3) so that citizens will be informed in advance of the risks they will be taking and the kinds of protection they will be afforded.
Title IV details how examining magistrates are responsible for ensuring that the Law on effective protection of whistleblowers is duly observed, assigning to only one in each judi-cial district the proceedings deriving from the whistleblower system, about which they must be informed and must manage, by way of introducing into this specialist legal sec-tion, a channel for reporting wrongdoing and for informing the public.
Finally, Title V envisages the application of a penalty system with regard to protection of whistleblowers, with the definition of a set of offences (Article 23) and penalties (Article 24) with a view to dissuading those affected by disclosures of crimes and infractions from taking reprisals against whistleblowers while also punishing such conduct and indemnify-ing victims when reprisals have already occurred.
Article 1.- Aim.
1. The aim of this Law is to establish measures to protect those people who disclose in-formation concerning illegal acts or wrongdoing which affect the public interest and which occur in the public administration or in private companies or entities.
2. The Law also regulates information systems and channels for reporting wrongdoing, established in the public administration or in private companies or entities, in order to receive such reports.
3. Finally, the Law regulates the legal and administrative bodies responsible for ensuring that the protection measures enshrined herein are duly complied with, and for supervis-ing the procedure for the verification of the reported information.
1. The Law will be applicable in the following public authorities:
a) The National State Administration and the Administrations of the Autonomous Communities, of the cities of Ceuta and Melilla, and of other entities comprising Local Administration.
b) The managing bodies and joint services of Social Security and also mutual insur-ance companies for accidents at work and occupational illnesses working with Social Security.
c) Autonomous organisms, State Agencies, public corporations, and public law bodies which, independently of functions or special autonomy recognised by law, are re-sponsible for external regulatory and supervisory functions with regard to a particu-lar sector or activity.
d) Public law bodies with separate legal personality linked with, or depending on any area of the Public Administration, including public universities.
2. The Law will likewise be applied to Public Law corporations, the Household of H.M. the King, the Lower House in the Spanish Parliament, the Senate, the Constitutional Court and the General Council of the Judiciary, the Bank of Spain, the Council of State, the Ombudsman, the Court of Audit, the Economic and Social Council, and the analogous institutions in the Autonomous Regions, commercial companies in which the direct or indirect participation in the public share capital of the entities incorporated in this article exceeds 50 per cent, public sector foundations included in legislation concerning foun-dations, and associations constituted by the public authorities, organisms and entities specified in this article.
3. The Law is applicable to the following legal entities:
a) Political parties, and trade union and business organisations.
b) Private entities of any kind which receive public funds when either of the two follow-ing circumstances apply:
– if, over a period of one year, they receive funding, grants or any other kind of in-come from the entities listed in the two previous sections to an amount exceeding 100,000 euros;
– when at least 50% of the total annual income is in the nature of public funding or subsidy whenever this is in excess of 50,000 euros.
c) Private companies whose annual turnover is equal to or exceeds two million euros.
In terms of this Law the pertinent expressions are understood as follows:
a) ) A whistleblower: any person who, having a reasonable conviction about reliability of information to which he or she has access and which would constitute a reason to blow the whistle/ a disclosure of wrongdoing, makes it known to a third party or third parties by way of administrative or jurisdictional disclosure of the wrongdoing, or through a channel especially established for this purpose. Any person who makes such a report in exchange for financial remuneration or payment in the form of assets of any kind is not considered to be a whistleblower. Apart from this exception, the motivation of the whistleblower is irrelevant.
b) Information constituting a reason to blow the whistle / disclosure of wrongdoing: any information which, presented together with evidence supporting the claim or reliable indications thereof, provides basic grounds for suspecting the possible perpetration of illegal activity or wrongdoings, the consequences of which affect not only the authority or private entity concerned but extend beyond them to harm or threaten the public interest.
c) Facilitator: this is a natural person or legal entity who or which contributes, assists or aids the whistleblower to reveal or make public information constituting reason to blow the whistle / disclosure of wrongdoing.
d) Channels for disclosing wrongdoing: these are systems or mechanisms for conveying information that are made available to any person in possession of information which may concern illegal action or wrongdoing. These channels can be internal when they are established by the administration or private entity in order to receive reports of wrongdoing in their sphere of activity, or they can be external when taking the form of channels equipped by any other entity or platform and made available to any person for the purposes of disclosure of wrongdoing.
Article 4.- Information that constitutes reason to blow the whistle / disclosure of wrong-doing
1. Activity giving rise to whistleblowing may be illegal practice and wrongdoing which harm and threaten the public interest, independently of whether they have already been carried out, are in the process of being carried out, or are to be carried out, or whether they occur within or outside state borders.
2. Information concerning wrongdoing in all the following, but not limited to, areas is deemed to constitute whistleblowing:
a) Any criminal offenses;
b) Human rights violations, attacks on fundamental freedoms, workers’ rights and other social rights as well as on the rule of law;
c) Accidents, disasters, natural hazards and other emergencies which may have oc-curred, or which may occur in future;
d) Practices entailing risks to human life and health, or any other threat to security, public health, consumer and user rights, national and global security, privacy and personal data protection, and the environment;
e) Wrongdoing in the administrative or corporate sphere, in public or private entities, related with abuse of authority, conflicts of interest, corruption, embezzlement of public funds, influence peddling, tax avoidance and fraud, illicit financial flows, fi-nancial responsibility and security, and open competition, inter alia;
f) Disciplinary or administrative misconduct with regard to data protection, or any other act of negligence or omission by government agencies or any of their em-ployees, legal entities, their officials, and their staff, misuse of power, abuse of authority, gross mismanagement, conflicts of interests, miscarriages of justice, breaches of legal obligations;
g) Acts to cover up any of these breaches;
h) Any other information not covered in the preceding sections which reveals harm or a threat to the public interest.
3. The fact that the information constituting a whistleblower’s disclosure of wrongdoing is classified as especially protected data, in the Protection of Personal Data Law, is not an impediment to receiving and communicating such information. If the information is made public, this exception will only cover information directly related with the illegal activities reported and in no case will it extend to publication or publicising of information related with third parties to whom such activities are in no way attributable. Obser-vance of the conditions of this exception will be the responsibility of the person who publishes the information.
4. The fact that the information constituting a whistleblower’s disclosure of wrongdoing is classified as protected data, as stipulated in the Intellectual Property Law, is not an im-pediment to receiving, communicating and publicising such information.
5. In cases where information constituting a whistleblower’s disclosure of wrongdoing be-longs to the categories of national security, official or military secrets, or classified in-formation, this information may be received and communicated but it cannot be indis-criminately publicised without the necessary precautions being taken to ensure that national security will not be jeopardised when making the illegal activity known. Public disclosure is deemed justified in cases of urgent and serious threats to public health, security and the environment. [If specification is needed see: http://www.irishstatutebook.ie/2014/en/act/pub/0014/print.html#sec18]
TITLE II. RIGHTS AND RESPONSIBILITIES OF WHISTLEBLOWERS AND FACILITATORS
CHAPTER I. RIGHTS AND GUARANTEES OF WHISTLEBLOWERS AND FACILITATORS
Article 5.- Rights assisting whistleblowers and facilitators.
The rights to security, anonymity and confidentiality, access to case files and procedural action, legal advice and indemnity are guaranteed to whistleblowers and facilitators.
Article 6.- Right to security.
1. Whistleblowers and facilitators will be given police protection when they report that their lives, bodily integrity or property are in danger, or are threatened as a consequence of disclosing the information or making it public. In this case, all measures of preventive protection stipulated in the Law on Protection of Witnesses and Experts in Criminal Cases must be applied by the authority (Title IV).
2. The same measures will be applied where necessary to spouses, spousal equivalents, as well as to relatives of both by kinship ties to the second degree of consanguinity or affinity.
Article 7.- The whistleblower’s right to confidentiality and anonymity
1. The public authorities guarantee the whistleblower’s right to confidentiality and protec-tion of his or her anonymity. Whistleblowers can opt to remain anonymous even when they must declare as witnesses in court proceedings resulting from information they have disclosed.
2. Facilitators and any other public or private individuals to whom the whistleblower has revealed his or her identity while also clearly indicating the desire to remain anonymous are obliged to respect this anonymity and not to reveal the whistleblower’s identity under any circumstances.
3. Channels for receiving information from whistleblowers will protect these rights in ac-cordance with the conditions set out in Article 18 of this Law.
4. Whistleblowers can use a channel for receiving their information in conditions of confi-dentiality, which is to say making their identity known but clearly indicating that they do not wish it to be made public. In this case, personal data or any other information re-vealing the identity of the whistleblower cannot be divulged without his or her express consent, and all managers of this channel are obliged to respect the conditions stipu-lated in the second section of this Article (7.2).
5. Only the whistleblower can decide if and when to renounce anonymity and this may occur at any point in the proceedings.
Article 8.- Right to information, access to case files, and concerning procedural actions.
1. All whistleblowers, including those who have chosen to disclose information anony-mously or confidentially, have the right to be informed about the current situation and results of any inquiry, inspection and investigation which may have arisen from their disclosures.
2. The whistleblower’s right of access to this information will be guaranteed de ex-officio, or at the request of the whistleblower so that he or she will be informed of the state of pro-ceedings at least every ninety calendar days.
Article 9.- Right to legal advice and defence
1. Whistleblowers and facilitators have the right to be advised and assisted by a practising lawyer in all proceedings related with communication of information constituting dis-closure of wrongdoing and in every measure that is taken as a result.
2. From the beginning of the procedure, when whistleblowers have insufficient financial means to pay for legal advice and de-fence this will be made available pro bono, subject to the Law on Legal Aid. Independ-ently of a whistleblower’s means to litigate, the right to legal aid is recognised and will made immediately available to whistleblowers and facilitators who have been charged or who are being investigated in trials linked with, deriving from, or that are a conse-quence of their status as such.
3. For the purposes set out in the previous section, when the whistleblower’s identity re-mains anonymous, he or she may freely choose a lawyer to give advice, or for his or her defence and, in this case, the procedure for recognising the right to pro bono legal aid will be deferred until the condition of anonymity is no longer required.
4. Whistleblowers and facilitators have the status of interested parties in those procedures arising from their disclosure of information. These procedures will be contradictory by nature since they will guarantee, when applicable, confidentiality and the anonymity of the whistleblower.
5. Bar Associations, when they require specialised courses for the exercise for the profes-sion of public defender, will pledge to provide specific training in order to assist effec-tive professional defence in cases involving corruption and whistleblower protection.
6. Similarly, at the request of the whistleblower, Bar Associations will adopt the necessary measures for the urgent designation of a court-appointed lawyer in procedures arising from disclosures.
1. Whistleblowers have the right to respect for their contracts and individual agreements with the employer or public or private contracting authority in their working relationship in the public service or in other workplaces and services, and as an employee or self-employed person. Employers and contractors may not present obstacles to the whis-tleblower’s employment, or professional, economic, social, scientific, academic, or any other kind of activity.
2. Disclosure of wrongdoing in accordance with the provisions of this Law cannot consti-tute any breach of the clauses of confidentiality detailed in an administrative, employ-ment, civil or any other kind of contract, including that pertaining to employment as a civil servant. Any clause in a contract prohibiting whistleblowing or disclosure of wrong-doing is null and void.
3. When the whistleblower suffers damage following disclosure of wrongdoing as a result of arbitrary decisions owing to action or omission by a public servant, employee, busi-nessman or businesswoman, or any member of a public or private institution or entity when exercising their authority, the whistleblower will be recompensed at the cost of this public or private institution or entity, by means of the appropriate procedure for ob-jective assessment of damages before the corresponding instance or court.
Article 11.- Measures to protect civil servant whistleblowers and employees of the public administration.
When the whistleblower is a civil servant, public employee, part-time worker, or perma-nent or temporary employee in any branch of the public administration or entity within its jurisdiction, he or she will enjoy the following rights for the duration of the procedure:
a) The right not to be penalised by, or to suffer any kind of reprisal from the administra-tion or private entity by means of dismissal with loss of civil-service status, penalties, suspension, transfer, demotion with a lower salary, deterioration in working condi-tions or any other similar measures, or in the form of any threat to apply such meas-ures.
b) The right, if reporting the imposition of any penalty or reprisal among those listed in the previous section and, in accordance with the terms established in the Basic Statute of Public Employees, to reduction or reorganisation of his or her working time, to geographical mobility, to transfer to another workplace, to voluntary unpaid leave with job security, and to termination of employment with the legal compensation owing to the employer’s serious breach of his or her obligations.
c) The right, if dismissed, to opt for immediate restoration of his or her status as a civil servant in accordance with the terms of the Royal Decree 2669/1998, of 11 December, which approves the procedure to be followed for rehabilitation of civil servants in the public administration, or for payment of compensation for wrongful dismissal, and also the procedural salary in both cases. Moreover, should the whis-tleblower be dismissed, he or she has the right to decide between immediate resto-ration to his or her position, or payment of compensation for wrongful dismissal, in addition to the procedural salary in both cases.
d) The right, if working conditions are substantially modified, to immediate restoration of the former conditions, and also to receive the difference in unpaid income during the period of modification should this be the case.
e) Under the terms stipulated in the General Social Security Law, suspension and termination of employment in the public sector, or of a job contract as described in the previous sections, will give rise to a situation of official unemployment. The pe-riod of suspension will be regarded as one of effective contributions in terms of Social Security and unemployment benefits.
Article 12.- Measures to protect the self-employed whistleblower and Social Security pro-visions.
When the whistleblower or facilitator is an employee, former employee, or member of any company or private entity concerning which he or she has provided information constitu-tive of disclosure of wrongdoing, and which has given rise to the initiation of an internal or external procedure of establishing liability, he or she will enjoy the following rights for the duration of this process:
a) The right not to be penalised by or to suffer reprisals of any kind from the employer, manager, or any other employee or member of the company or private entity con-cerned, in the form of dismissal, penalties, suspension, transfer, demotion to an-other position with a lower salary, deterioration in working conditions, or any other similar measures, or in the form of any threat to apply such measures.
b) The right if reporting the imposition of any penalty or reprisal among those listed in the previous section, and in accordance with the terms established in the Statute of Workers Rights, to reduction or reorganisation of his or her working time, to geographical mobility, to transfer to another workplace, to voluntary unpaid leave with job security, and to termination of employment with compensation owing to the employer’s serious breach of his or her obligations.
c) The right, if dismissed, to opt for immediate restoration of his or her job under the former conditions, or to payment of compensation for wrongful dismissal, and to the procedural salary in both cases.
d) The right, if working conditions are substantially modified, to immediate restoration of the former conditions, and also to receive the difference in unpaid emoluments during the period of modification should this be the case.
e) Under the terms stipulated in the General Social Security Law, suspension, and termination of a job contract as described in the previous sections will give rise to a situation of official unemployment. The period of suspension will be regarded as one of effective contributions in terms of Social Security and unemployment benefits.
Article 13.- Measures to protect the economic or professional activity of the self-employed whistleblower
Whistleblowers who are self-employed professionals or workers and obliged to leave their jobs for reasons of protection will be exempted from the obligation to pay Social Security contributions for a period of six months during which time they will be regarded as effec-tive contributors and eligible for Social Security benefits. In addition, their situation will be considered as equivalent to being registered with Social Security.
1. The whistleblower and facilitator must be reasonably certain of the verisimilitude and reliability of the information they reveal. However, verifying the verisimilitude of facts which have led to the disclosure and their being considered as possible crimes, wrongdoing or actions against the public interest will be the responsibility of the organ-ism or institution carrying out the resulting investigation.
2. If the investigation into the facts denounced by a whistleblower concludes that the law was not broken or that there was no wrongdoing affecting the public interest, there will be no negative consequences for either the whistleblower or the facilitator and they will suffer no penalty or any kind of punitive action. They will continue to enjoy the rights and protection afforded by this Law unless it is proven that the whistleblower or facilita-tor knew that the information provided was implausible, inexact or untrue at the time the report was made. In this case, the whistleblower’s conduct will be subject to sanction in accordance with the provisions of Title V.
3. With the exception indicated above, the whistleblower and the facilitator will not be held responsible for any harm or damage that may arise from communication or public knowledge of disclosure of wrongdoing, and neither will they incur any type of liability or civil or criminal disciplinary action which may derive from these circumstances and, in particular, including those pertaining to possible attacks on honour and reputation, or infringement of regulations concerning copyright, trade secrets and protection of personal data.
4. Companies and organizations with more than 50 employees; he private companies with a turnover or balance sheet of over €10 million; the State administrations, Regions and Departments and Municipalities with more than 10,000 residents, the private legal entities of any size operating in the area of financial services or vulnerable to money laundering will have the obligation to have an internal channel for the reception of anonymous and secure alerts, as defined in article 18.2.
The whistleblower may freely choose the most appropriate channel for communicating information without this representing any limitation of the rights and guarantees enshrined in this Law.
Article 16.- Internal systems.
1. The whistleblower working with, or providing services to public or private organisations equipped with channels for disclosures may, at first and if he or she so chooses, decide to use these channels but is not obliged to do so.
2. The whistleblower who uses internal channels for disclosure of wrongdoing is protected by the rights detailed in Title II of this Law.
3. The entity responsible for the reporting channel will inform employees, contractors and users of the existence of, and conditions for access to the channel and, in particular, with regard to its anonymous, secure nature, and when this is not the case, must warn of possible risks to the whistleblower arising from using the channel for reporting wrongdoing.
Article 17.- External systems.
1. The State Administration and the administrations of the Autonomous Regions must establish an anonymous, secure channel for receiving disclosures of wrongdoing to be used by any person and capable of receiving information constituting a disclosure of wrongdoing related with any of the entities enumerated in Article 2 of this Law.
2. Any other administrations or entities, including the media, non-governmental organisations, trade unions, members of legislative chambers, the Ombudsman and analogous institutions, may also establish external whistleblower channels.
Article 18.- Protection of confidentiality and anonymity.
1. The channels for receiving whistleblower reports must be equipped with mechanisms that provide protection of the anonymity of whistleblowers and confidentiality. Information regarding access to the channel, the way anonymity is protected, and the limits thereof must be explained in detail so that a whistleblower has all the information he or she requires, and to ensure that he or she will not be led into error owing to lack of in-formation.
2. To this end, can be called anonymous and secure channels only those channels that can guarantee the anonymity of the whistleblower, – mailboxes, telephone lines and other mechanisms of electronic communication -, this means those channels which can ensure secure access through anonymous browsing and connection, and which explain how to eliminate metadata so that the documents disclosed do not jeopardise the whistleblower’s anonymity. They must provide the whistleblower with an identifying code or some other kind of procedure for following up subsequent action and continuing contact with the whistleblower in such a way as not to put his or her anonymity at risk. Administrations or entities responsible for managing the channel will apply adequate technical and organisational measures for protecting data whenever it is requested, conveyed or stored. Data and metadata, with respect to both complainant and the person being reported for wrongdoing, must be protected against accidental and illegal destruction, loss, and unauthorised access and distribution.
3. Channels which do not meet the stipulations described in the section above cannot be publicised as being anonymous and secure and, should this occur, they may be punishable for affecting the whistleblower’s right to indemnity.
Article 19.- Specialised section in the Examining Courts.
1. Examining Courts, when engaged in duties deriving from reception of information constituting disclosure of wrongdoing in accordance with the terms stipulated in this Law, will be responsible for ensuring that these stipulations are complied with, and must also ensure that whistleblowers and facilitators are protected.
2. A sufficient number of secure and anonymous channels per inhabitant should be established and Specialized Examining Courts. In the Specialized Examining Courts a specialised section will be equipped with a channel for informing the public, by means of a telephone hotline guaranteeing anonymity or by using the reporting channel itself, about how the reporting system functions and concerning the regime of protection for whistleblowers.
3. When a whistleblower or facilitator reports wrongdoing, it is this Specialized Examining Court, that will initiate examination of the evidence adduced and, within a non-extendable period of five days, will recognise, where appropriate, the status of whistleblower, and will apply the measures under the terms of this Law.
4. The decision concerning the status of whistleblower pronounced by the Investigating Judge will take the form of a judicial decree and will order that the legal section for whistleblower protection will inform the latter of all the rights and guarantees he or she may invoke under the terms of this Law.
Article 20.- Legal framework.
Application of the sanctioning authority with regard to whistleblower protection will be carried out in accordance with the provisions of Law on the Legal Regime of the Public Sector.
Article 21.- Obligation to report wrongdoing.
1. Administrative bodies, companies and entities which are responsible for internal or external channels for whistleblower disclosures are obliged to report, without delay, any sign of infraction of whistleblower rights of which they may be aware. This obligation also applies to individuals responsible for channels for receiving whistleblower reports.
2. Organs and entities referred to in the section above must refer their report to the following authorities:
a) The disciplinary authority within the public administration or entity which has the power to impose penalties when the alleged offender is a public servant, employee of, or worker in this entity;
b) The Presidency of this body, when the alleged offender is an elected official, director, board member, employer or a person occupying a position of trust who does not come under the jurisdiction of the disciplinary authority described in the section above;
c) The head of Human Resources when the alleged offender is an employee of, or worker in a private entity or company;
d) The president of the board of directors or administrator of the private company or entity, when the alleged offender is an executive, board member or person occupying a senior position and not subject to disciplinary action in the workplace;
e) The public or private contracting authority of any of the aforementioned entities, when the alleged offender is a contractor thereof;
f) The Ombudsman or the Examining Court of the judicial district where the facts have occurred or, where appropriate, the Court responsible for whistleblower protection in the districts where these courts are established, when the alleged offender is any of the aforementioned subjects who are responsible for apportioning responsibilities.
Article 22.- Competent bodies when exercising power to impose sanctions.
1. When the content of the whistleblower’s report may suggest the possible existence of activity constituting a crime, the entity which has received the report must immediately inform the Examining Court of the judicial district where the events have occurred, or the Court responsible for whistleblower protection in the districts where these courts are established.
2. When the facts do not appear to suggest evidence of a crime but could constitute infringements of the provisions of this Law which may be attributable to employees in any branch of the public administration, those individuals who are authorised by the regulatory law of the branch of the administration concerned may be informed of the details of disclosures and are empowered to initiate, decide on proceedings, and rule on the appropriate disciplinary action.
3. In cases not covered by the previous sections, the Ministry of Justice will have jurisdiction for initiating, deciding on proceedings and ruling on the case and, where appropriate, the institutions of the Autonomous Communities with their respective legislation will also have these powers.
Article 23.- Infractions.
1. Any actions or acts of omission contravening the provisions of this Law will be considered violations of the regime protecting the rights of whistleblowers and facilitators.
2. The infractions described in this Law are classified as very serious, serious, or minor.
a) Considered as very serious infractions are the following:
a.i) violation of the guarantees of anonymity and security set out in this Law, and other actions which have exposed to the public material pertaining to whistleblower channels;
a.ii) disclosure of the identity of the whistleblower when he or she has opted for anonymity, and any infraction of the rule of confidentiality where this applies;
a.iii) issuing of instructions or engaging in any undertaking tending to reveal the identity of the whistleblower when the latter has opted for anonymity or confidentiality;
a.iv) the imposition of penalties or adoption of damaging measures as a result of the whistleblower’s disclosure when they place the whistleblower or facilitator subjected to them in a situation of irreparable personal harm, which can only be recompensed by means of financial compensation;
a.v) not having taken the precautions stipulated in Article 5 in cases of information officially listed as concerning national security, official or military secrets and other kids of classified material;
a.vi) channels that do not comply with the conditions stipulated in Article 18.2 and which are claimed to be anonymous and secure.
b) Considered as serious infractions are the following:
b.i) omission of information necessary for using a channel for receiving and communicating whistleblower disclosures;
b.ii) communication by a whistleblower or facilitator of information claiming to be a report of wrongdoing when it is implausible, inaccurate or false;
b.iii) threatening, in all cases constituting a whistleblower’s report, to initiate sanctions or to impose a penalty on the whistleblower or facilitator, and beginning effective procedures for their application when no penalty has been decided;
b.iv) the imposition of sanctions or adoption of damaging measures as a result of the whistleblower’s disclosure of wrongdoing when they have caused a situation of temporary personal harm and economic disadvantage to the whistleblower or facilitator who has suffered these penalties or measures, in such a way that no permanent damage is incurred and reasonable compensation is possible, when ever this compensation is calculated to exceed TWO THOUSAND EUROS (€2,000).
c) Considered as minor infractions are the following:
c.i) those described in sections b.i) and b.ii) when, owing to their minor scope and importance, they cannot be deemed to be serious;
c.ii) all those actions that contravene the stipulations laid out in this Law when they involve the circumstances described in paragraph b) above and when the damages caused are estimated in financial terms as not exceeding a sum of TWO THOUSAND EUROS (€2,000).
Article 24.- Penalties.
1. Very serious infractions will be penalised with a fine of between 100,001 and 600,000 euros; serious infractions will be fined between 20,001 and 100,000 euros; and minor infractions will be fined a sum of up to 20,000 euros.
2. Very serious infractions will be sanctioned with disqualification up to three years; the serious, with disqualification up to one year.
3. When the infraction is committed by a public servant or an employee of the public administration, and this violation is directly related with his or her prerogatives, he or she will be penalised with temporary suspension of up to three months in cases of minor infraction; of up to one year in cases of serious infraction; and up to three years or dismissal if the infringement is deemed to be very serious.
Article 25.- Proportionality in imposition of penalties.
The degree of the penalty will be considered in accordance with the following criteria in particular:
a) The degree of culpability and existence of intentionality;
b) Continuation or persistence of the conduct constituting infraction;
c) The nature of the damage caused;
d) Re-offending by committing, within a period of one year, more than one infraction of a similar nature when the behaviour in question has been officially declared an infraction.
Article 26.- Statute of limitations.
1. General norms will be applied to the statute of limitations regulating the power of the administration to impose penalties.
2. The restrictions of the statute of limitations will not apply to whistleblowers while they remain in a situation of anonymity, and when reporting of the infraction could occasion any loss or greater damage.
Article 27.- Awarding damages.
1. If the penalised conduct has caused damage or harm to any branch of the public administration, to a private entity, or to a whistleblower or facilitator, the settlement of the proceedings will contain an express pronouncement regarding the following extremes:
a) when the person committing the infraction is required to restore to its original state the situation that has been altered by the wrongdoing;
b) when this is not possible, compensation must be offered for any damage caused.
2. Civil liability arising from any infraction will always be shared by all those people who have caused the resulting damage unless the decision declaring liability is reasonably distributed among the wrongdoers.
Article 28. Expiry of proceedings.
1. Proceedings will expire 6 months after they have been initiated if no decision has been made and indicated, although it is necessary to take into account in this calculation possible interruptions for reasons which are attributable to the person or persons concerned, or any suspension which must be agreed upon due to the existence of criminal proceedings when these concern the identity of the subject, the facts and the rationale, until these proceedings have been finalised.
2. The decision declaring expiry of the proceedings will be conveyed to the interested party or parties, without prejudice to the authority’s right to agree to initiate new proceedings providing that the infraction is not statutebarred. Expired proceedings will not interrupt the statute of limitations.
First additional provision. Follow-up Commission.
This Law will be submitted to a follow-up commission and to revision in the Parliament. Every six years the commission will carry out a revision process which is open to all concerned parties, entities for the defence of whistleblowers, interest groups, academics, civil society, business organisations and any other person who may be concerned.
Second additional provision. Amending Law 1/1996, of 10 January, on Free Legal Aid
1. A section j) has been added to Article 2 of the Law cited above, in the following terms:
“j) Independently of the means to institute legal proceedings, the right to free legal aid is recognised and this should immediately be applied to whistleblowers or facilitators who, complying with the requisites detailed in the Law on Full Protection for Whistleblowers, may be charged or investigated in proceedings connected with, deriving from or the consequence of their status as such.”
2. A third paragraph has been added to Article 6, section 1 of the Law in the following terms:
“In cases of people who are deemed to have the status of whistleblowers or facilitators in accordance with the stipulations laid out in the Law on Full Protection for Whistleblowers, free legal aid deriving from lack of sufficient means to engage in legal proceedings will cover legal advice, guidance, and free defence in all administrative formalities and procedures and court proceedings related with the information constituting disclosure of wrongdoing which they have supplied, and also related with the fact of having supplied it. In these cases, and also in those described in Article 2.j), when the whistleblower has opted for anonymity, the request for, and subsequent recognition of the right to free legal aid can be deferred until such time as the situation of anonymity ends, after which the person concerned will have a period of two months in which to request it. In this case, compensation which may result from legal advice and defence of the whistleblower will be paid to a lawyer, of his or her choosing, who has provided these services, who will continue to do so, and who will be equated with that designated to provide the legal aid for all purposes.”
One only. Repeal of provisions.
This Law will come into force the day after its publication in the Official Gazette.
*With legal advice from the partnership Simeó Miquel Adv. Ass.