Spain finally presents first draft whistleblowing law
Last week, over a year later than initially planned and following the approval of the Council of Ministries, Spain’s Ministry of Justice finally published its first official draft of a law to transpose the EU Directive on Whistleblower Protection. The Directive was adopted by the European Union in December 2019, meaning that the formal deadline for EU member states to pass their own laws was crossed in December 2021.
This initiative, which is likely to result in Spain’s first stand-alone whistleblower protection law is to be welcomed. In the past 15 years, numerous high-profile whistleblower cases revealing corruption and misconduct in political parties, the military and other sectors of society have shaken Spain. But only one proposal for whistleblowing legislation has been brought to the vote: we, and many others, were critical of that Ciudadanos proposal in 2016 and it was duly rejected then and on a second occasion in 2020.
While the appearance of the draft is something to celebrate, it is by no means perfect. We have identified some significant issues that lawmakers should address before the legislation is passed:
Public interest: The draft law does not define key terms, such as "informant", "facilitator", "work context", "public disclosure", "retaliation" or "monitoring". Most critically, the draft falls short on making clear what authorities investigating whistleblowers’ disclosures should consider as “threats to the public interest.” The term serves as a threshold for the granting of protection as well as duties to investigate report, but it is introduced without providing any kind of guidance or interpretation, only referred in the preamble as the financial interest of the state. To stop the term being used in an arbitrary and limiting way to either ignore whistleblowers’ disclosures or deny protection where it is most needed - both of which would run counter to the Directive - Spanish lawmakers need to provide clarification.
Legal liability for whistleblowers: The current draft includes a number of provisions that could have a significant chilling effect on whistleblowers and prevent them from raising concerns, for fear of facing criminal charges. Not only does the draft not grant full criminal immunity to whistleblowers, it states that reports should not be investigated if there is an imputation about the way information has been acquired. This runs completely contrary to the intent of the Directive.
We think the Preliminary Draft must include reasonable exceptions that allow whistleblowers to make a report without fear of being accused of theft, computer crimes or similar offences. An accusation should not put a stop to any investigation. No whistleblower should have to fear being handed over to the Prosecutor's Office.
Independence of the oversight authority: While we welcome the introduction of an independent whistleblowing authority, we think the current provisions should be modified to ensure the organisation is truly independent. As is, the text lacks mechanisms to monitor and counterbalance activities carried out by the President of the Independent Authority. The Advisory Committee, which is designed to assist the President, would benefit from the inclusion of representatives of civil society, who constitute an important pillar of democratic societies and a key source of practical and moral support for whistleblowers.
Blueprint for Free Speech has been active in Spain since 2018, and closely monitors developments strengthening freedom of expression, whistleblower protection and related issues. We have submitted an extensive response to the Justice Ministry in response to their publication, expanding on this and additional aspects, which you can find here (or here for the Spanish version).