The deputies adopted this Tuesday, February 8 the bill “aiming to improve the protection of whistleblowers”. In particular, the text makes it possible to simplify procedures.
What is a whistleblower?
The Sapin II law of 2016, a reference text on the subject, defines it as “a natural person who reveals or reports, in a disinterested manner and in good faith, a crime or an offence, a serious and manifest violation of an international commitment (…), of the law or regulation, or a serious threat or harm to the general interest, of which he has personal knowledge”.
The law nevertheless excludes information covered by national defense secrecy, medical secrecy or the secrecy of relations between a lawyer and his client.
Whistleblowers regularly make the headlines. This is particularly the case of former Facebook employee Frances Haugen, who denounced the abuses of Mark Zuckerberg’s company, or Sergei Savelev, a former Belarusian prisoner who revealed a scandal of organized rape in Russian prisons.
France has several famous whistleblowers such as Antoine Deltour, at the origin of the LuxLeaks financial scandal, or Irène Frachon, the pulmonologist who launched the Mediator affair. Victims of multiple pressures, these citizens often see their jobs threatened after their revelations. Hence the need to strengthen their status.
How were they protected in France?
In the private sector as in the public sector, the official or employee who finds a fact that harms the general interest must first notify his hierarchy, or a referent designated by it.
In the event of disagreement on the merits of the alert or in the absence of a response within a month, the employee could contact the prosecutor, the prefect or the professional order concerned. It is only as a last resort and in the absence of treatment of the alert within 3 months that the report could be made public, in the media for example.
If he followed the procedure, the whistleblower was protected by law. But in fact, many pitchers were fired before they could even assert their rights.
What will the new law change?
Transposition of a European directive, the bill of the deputy Sylvain Waserman (MoDem) simplifies the reporting procedure, considered too cumbersome. From now on, the whistleblower will be able to directly alert the justice system, the Defender of Rights, the professional orders or the administrative authorities, without having previously informed his company or administration.
Another notable change, the definition of the whistleblower has been revised. The expression “in a disinterested manner” is thus replaced by “without direct financial consideration”. The notion of disinterestedness, considered ambiguous, could put the whistleblower in difficulty in the event of an appeal to obtain compensation before the industrial tribunal.
The new law also provides for sanctions against those who would seek to stifle the action of a whistleblower, to subject him to reprisals or to reveal his identity against his will.
The text also creates the status of “facilitator”, to recognize and protect natural or legal persons who come to the aid of a whistleblower.
Another bill, adopted at the same time by the deputies, creates the post of assistant to the Defender of Rights “in charge of supporting whistleblowers”. Whistleblowers can send him a report directly. If the report falls within its competence, it will collect it, process it and provide feedback to its author. Otherwise, the whistleblower will be referred to the competent authority.
The Deputy Defender of Rights may also issue an opinion to certify that the author of a report can effectively benefit from the protection granted to whistleblowers.