Civil society urges Spanish Senate to amend harmful whistleblower protection bill before it is too late

Whistleblower protection experts including Blueprint for Free Speech are expressing their concern for the Spanish Government’s lack of serious political commitment to transpose the EU Directive on the protection of whistleblowers.

On Wednesday 8 February, Spain’s Senate will vote on the draft whistleblowing law to protect whistleblowers (Ley reguladora de la Protección de las personas que informen sobre infracciones normativas y de lucha contra la corrupción) approved on 23 December, 2022 at the last plenary session of the Congress of 2022.

The Whistleblowing International Network, of which Xnet, GAP, The Signals and Blueprint for Free Speech are associate members, warns that if approved in its current form and without the amendments that Xnet has recommended to the political groups in the Senate, the bill could be disastrous for whistleblowers and subject to challenge by the EU.

Anna Myers, Executive Director of WIN and Tom Devine, Legal Director of the Government Accountability Project, state “It is alarming to see policymakers in Spain fail once again 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 stem the damage. If they did, they would be fighting to ensure Spain had the best law in Europe. Instead, the message to the people of Spain is still “speak up at your own risk.”

According to Blueprint for Free Speech’s national population survey, here and here, the majority of Spaniards want real protections for whistleblowers. According to Transparency International’s Corruption Perception Index report (2022), Spain has now seen an increase in corruption for two years in succession. YUnfortunately, the proposed whistleblowing law - something that should serve as an effective and progressive instrument to fight corruption - has been treated merely as a formal exercise to comply with the minimal requirements of the EU.

The main problems with the law as it stands are as follows:

• The law only protects the reporting of "serious and very serious" acts, leaving out countless other behaviors such as harassment or abuse of power. All threats or harms to the public interest should be included;

• The law only protects the reporting of "very serious" crimes, leaving out countless other cases of abuses of power and wrongdoing. The EU Directive stipulates that the law should protect those who speak up about any matter that threatens or harms the public interest;

• Whistleblowers are de facto only protected if they follow official channels. However, the Directive does not specify this at any time;

• The law does not protect whistleblowers from retaliation if they disclose information that is already in the public domain, even if only partially. , This clearly undermines the purpose of any legislation on whistleblowers which is to encourage and protect the free flow of information for institutional accountability;

• There is no removal of criminal liability, a fact that would leave cases like that of Antoine Deltour, Edward Snowden, Herve Falciani, and many others unprotected or without a public interest defence;

• The law does not protect intermediaries, who are part of the story in most real-life cases;

• The law does not establish technical requirements for reporting systems and thus discriminates against anonymous reports despite the fact that the Law admits anonymity under equal conditions;

• The Independent Whistleblower Protection Authority would be given overly broad investigative powers without a concurrent judicial mandate. There isno way to review or appeal their decisions.

More details of the proposed amendments to the law can be found on Xnet’s website.

WIN has written to the European Commission to warn that Spain’s draft law is not only “dysfunctional” and “unclear”, but that it “violates” and risks “undermining” key aspects of the EU Directive. When Member States like Spain adopt laws that fail to protect whistleblowers as a matter of institutional and democratic accountability, they risk being found non-compliant with the minimum requirements of the EU Directive (2019/1937) and subject to infringement procedures under EU law. Even more importantly, they fail to give people who speak up in the public interest the power to effectively defend themselves against retaliation from the wrongdoers. This runs counter to both the letter of the law but also to Spain’s democratic commitment a part of the EU to properly and effectively protect whistleblowers across Europe.