Whistleblowers: Towards a more protective status in France?

Coincidence or not, a week after the hearing before French deputies of whistleblower Frances Haugen, who unveiled internal documents accusing Facebook of putting "profits before security", the deputies of the National Assembly are preparing to debate from Wednesday a bill aimed at strengthening the protection of whistleblowers. This text must transpose into French law the European directive of 2019, aimed at harmonizing the status of whistleblowers in the EU.

The Modem deputy from Bas-Rhin Sylvain Waserman, the bearer of this text, wants to go further by proposing an "ambitious" and "unprecedented" law before the next French presidency of the Council of the European Union, on January 1 next . Among the key measures that it intends to put to the vote, and which could represent real progress, is in particular the payment of the legal costs of the whistleblower to deal with "gag procedures" (by the company or the administration targeted by leaked documents), as well as criminal penalties, up to three years in prison, for companies that retaliate against a whistleblower.

A financial support fund?

Another major measure, eagerly awaited by NGOs and trade unions, could on the other hand fall by the wayside. The creation of a “citizen” support fund for whistleblowers, intended to provide them with financial and psychological assistance, could be rejected. “One of the advances of the directive is to allow significant financial support for the whistleblower. There is an article in this bill which allows it but which seems quite fragile, and it is feared that it will not withstand parliamentary scrutiny, ”notes Antoine Deltour, whistleblower at the origin of the revelations of the scandal. Luxleaks. “Lawsuits have a cost with a considerable asymmetry of means, because the whistleblowers are generally isolated citizens facing extremely powerful financial interests. The challenge of this support fund is to restore some balance in the face of legal proceedings.”

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The question of financial support is indeed crucial in the protection of the whistleblower. Denis Robert, journalist who revealed the “Clearstream” affair in the 2000s, assessed all of his legal costs at… 800,000 euros. The American whistleblower Frances Haugen, heard before the Hemicycle, also pointed out that many young Facebook executives did not feel like taking the plunge, because of their still precarious status. "Money is the sinews of war", willingly admits Denis Breteau, whistleblower who denounced in 2012 rigged calls for tenders from the SNCF. "It's often David against Goliath, so it is crucial to provide financial support to people who give the alert", recognizes the SNCF executive, stressing that this component had already been revoked in 2016 from the Sapin II law. , which provided a first legal framework for this status.

“Criminal sanctions” for companies

Be that as it may, this new bill, which is supposed to further strengthen the status of whistleblower, is very favorably received by associations and NGOs. “It is a top-down transposition of the European directive”, recognizes the president of Anticor Elise Van Beneden. "It aims to build a more protective environment for whistleblowers, by clarifying their status, by providing for an external reporting procedure and by strengthening the sanctions against those who try to dissuade or sanction them", adds the head of the anti-corruption association. However, it regrets that the bill does not go so far as to grant the status of “protected employee” to these citizens who work for the general interest. “This would prevent them from losing their jobs – which is almost always the case – and it would send a strong signal to companies, and above all to society”.

Such measures to strengthen the status of whistleblower, Irène Frachon has also been waiting for years. The pulmonologist who revealed the Mediator scandal, supports the establishment of criminal sanctions for companies that retaliate against a whistleblower. “I was lucky to be able to keep my job, and to have the support of my superiors, but the pressures suffered for years still leave me very bitter today. I would have liked Servier laboratories to be condemned, at least to a fine, for having had my book censored, and for the time spent denouncing the dangers of a drug that they themselves should have pointed out,” adds the doctor. .

Even if it contains several advances, this bill also has many limits, recognize most associations. Disclosures covered by national defense secrecy, medical secrecy, secrecy of judicial deliberations, secrecy of investigation and instruction, as well as professional secrecy of the lawyer will be excluded from this system. “NGOs or trade unions cannot also be considered as whistleblowers, the text specifying that only a natural person, employee or public official, can be granted this status”, specifies Elise Van Beneden, the president of Anticor. . An "absurd" measure, according to Maureen Kearney, whistleblower in the Areva case, who was able to benefit from the support of a union throughout the procedure. “This would allow people who are fragile or fearful for their physical and professional integrity to take the plunge, and thus reveal more cases,” she believes.