XNet: We Ask That the Senate Amend the Law in Defense of Whistleblowers

This article features Government Accountability Project’s Legal Director, Tom Devine, and was originally published here.

International experts in the defense of whistleblowers alert the EU of serious deficiencies in the Spanish Law in view of the vote in the Senate this Tuesday

This Tuesday, February 8, the draft ” Law for the defense of whistleblowers ” ( Regulatory Law for the Protection of people who report on regulatory violations and the fight against corruption ) approved on February 23, is voted in the Senate . December, in the last plenary session of the Congress of 2022.

WIN, a European organization of reference, of which Xnet, GAP, The Signals and Blueprint for Freespeech are active members in Spain, warns that if it is approved in its current form and without the amendments that Xnet has recommended to the political groups in the Senate ( see below) , the bill could be disastrous for whistleblowers and even challengeable before the EU.

Xnet denounces that, just in these days in which for the second consecutive year Spain has once again worsened in the degree of perception of corruption according to the annual report of Transparency International, this law, which should serve as an instrument to fight against corruption, on the contrary, in its current wording it ends up being a mere minimum procedure to comply with the (delayed) transposition required by the EU .

Anna Myers, Executive Director of WIN and Tom Devine, Legal Director of the Government Accountability Project, say: “It is alarming to see that politicians fail 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 stop the damage. If they did, they would be fighting for Spain to have the best law in Europe. Instead, the message to the people of Spain remains “speak at your own risk” .

For all these reasons, and given the risk of adopting legislation that does not protect whistleblowers and does not meet the minimum standard requirements of the EU Directive (2019/1937), WIN has urgently addressed a letter to the European Commission , warning about this fact and indicating that it considers the draft law “dysfunctional” and “unclear” in sensitive aspects, that it “violates” and “undermines” key aspects of the directive.

Some of the main gaps in the Law:

– The proposed Law only protects the reporting of “serious and very serious” crimes, leaving out countless other behaviors such as harassment or abuse of power, when the Directive stipulates the protection of whistleblowers of abuse of power or any matter that threatens or harm the public interest;

– De facto only protects whistleblowers who follow official channels, when the Directive does not specify it at any time;

– Does not protect you from retaliation for disclosing information that is already on the public record, which undermines the purpose of any whistleblower legislation;

– It does not eliminate criminal liability, a fact that would leave cases such as black cards, Snowden, Falciani, Deltour and many others unprotected;

– Gives the new Independent Whistleblower Protection Authority overly broad investigative powers without a warrant;

– Does not establish technical requirements for information systems and thus discriminates who uses them anonymously despite the fact that the Law must admit anonymity under equal conditions;

– Leave to their fate the organizations that help and investigate along with the people who inform, etc.