Expert Rainer Winters on the catastrophic situation for German whistleblowers. What will the new "Whistleblower Protection Act" change? interview
Is there something new coming up now? Germany must have implemented the EU requirements for the protection of whistleblowers in national law by 2021. What is being initiated there? Suffice it to mention the names Julian Assange, Chelsea Manning and Edward Snowden to indicate the effect whistleblowers can have. You have changed the view of US military policy and its background. Surveillance has been understood differently since Snowden. Together, they have plowed the field of investigative journalism.
In Germany, however, there is a catch: "Germany loves whistleblowers - unless they are German," is how Mark Worth sums up the situation. Worth, chairman of the European Center for Whistleblower Rights and the NGO Whistleblowing International, assesses the current situation mercilessly
"The Federal Republic has not yet protected any of the German citizens, no exceptions are known that have exposed crime, corruption or risks to public health, let alone honored them or cast them in bronze. None of the public whistleblowers in Germany suffered professional disadvantages or financial problems or personal ruin. Unlike Assange, Manning, and Snowden, their enormous personal sacrifices went unappreciated and largely unnoticed.Mark Worth
He describes several cases of German whistleblowers and they all don't turn out well:
"Compared to other European countries, many of the German whistleblower cases received significantly less attention in the media; in addition, they are among the most protracted and vengeful."
Whistleblowers have little legal support and little support where it matters. This is exactly what is about to change.
Justice Minister Christine Lambrecht (SPD) has now completed the draft for a "whistleblower protection law" and sent it to the other departments for approval, as the SZ recently reported. The newspaper allegedly has the draft. The SZ quotes from the draft that the new law is intended to expand "the hitherto incomplete and inadequate protection of those giving information".
Last week, the SPD parliamentary group in the Bundestag also adopted a position paper with the best of intentions to protect whistleblowers in Germany. In the article by the whistleblower network, the term "whistleblower authorities" is even used, a peculiar combination of a German bureaucracy solution and a phenomenon from the international public that the legislature is lagging behind.
So it is about "new territory". About rules that are difficult to see through, about risks facing powerful interests directed against whistleblowers, and about the establishment of institutionalized protection. Telepolis talked to Rainer Winters about this. Winters is a journalist specializing in "whistleblowers" and, together with Whistleblowing International, is building a new NGO to protect whistleblowers.
Courage against "truth management"
Mr. Winters. What will the new whistleblowing legislation change in Germany? Is a path being taken that promotes transparency and also strengthens the so-called "fourth power", journalism?
Rainer Winters: The fourth power in the state is supposed to control politics, which it does quite well. Controlling the economy is not that easy. Many editorial offices are reluctant to report on companies. Major scandals mean a lot of work for journalists and their legal departments. If, as a rule, high corporate bosses and post holders are the bad guys, one understands why large media companies no longer accept some serious cases in the first place.
Of course, business secrets must continue to be protected. In the case of violations of all kinds, however, we are quick to comply with the law, which is more important than any company loyalty. However, confidentiality obligations will also prevent a large number of employees from speaking up in the future. We can only resolve the widespread fear in Germany of opening our mouths if we strengthen the rights of mouth opening people.
Innovative and profitable companies excel in promoting transparent and open dialogues. The fourth power is lagging behind. In recent times we have often seen how the big media see themselves as company leaders of an old tradition, namely to "manage" the truth. Modern firms, on the other hand, consider it their greatest risk when employees don't talk about bad behavior. With the new law, we now have the chance of a cultural change.
Nevertheless, the new law must allow whistleblowers to go public while remaining anonymous. So, in the interests of everyone, I believe that transparency and journalism will win, but at a different time. The media should only report when whistleblowers are protected. What is detrimental to sensational journalism has great advantages for everyone involved except for the beneficiaries of the sensation.
I know from the journalist who brought out the BSE scandal uncovered by Margrit Herbst that the case emaciated not only Margrit Herbst, but also her personally. Years later we read the star: What happened to Margrit Herbst?
"Germany must now manage the cultural balancing act"
What about the whistleblowing lobby? Have the conditions changed in recent years in favor of more transparency?
Rainer Winters: In any case. The whistleblower movement has become mainstream around the world. Be it at APEC or at the level of the United Nations. For years, the EU has been extremely open to suggestions, especially in the process of becoming a whistleblower protection directive.
Many activists had direct access to EU officials here. The preparatory work has of course been going on for years and is expressed in works such as the United Nations Convention against Corruption or the Criminal Law Convention on Corruption of the Council of Europe.
The lobby is good and is becoming more and more convincing, even against considerable opposition from business and the CDU / CSU. Germany must now manage the cultural balancing act of understanding whistleblowing as something useful for society and that whistleblowing is not dangerous. According to the principle: Help - not hit.
What we also need are more external contact points that give whistleblowers well-founded advice. The whistleblower network or Transparency International, for example, do very good lobbying work, but to the best of my knowledge do not specifically support a single whistleblower. In this respect, the lobby for whistleblowing is stronger than for people, the whistleblowers themselves.
"Without a protection law, whistleblowers in Germany will be completely lost in the future"
Is the SPD position paper an important signal or more or less lip service? How seriously is it being taken?
Rainer Winters: First of all, the SPD paper is gratifying. The EU directive is only an absolute minimum. It can hardly be made clearer than the position paper: The exhaust gas and Wirecard scandal mean thousands of euros lost for a great many people in Germany.
So it is in the interest of the common good that the new law also applies to Germany. Without an independent whistleblower protection law, whistleblowers in Germany will be completely lost in the future. The legal uncertainty of a chapter law in which around fifty laws would have to be amended would not change the current status quo: A profound legal uncertainty, which in fact corresponds to an absence of protection.
It seems to me that the pitfalls of Article 22 have not yet been grasped: even if a lawsuit admissible under this provision were dismissed or found to be unfounded, a whistleblower could be involved in costly legal proceedings for years, bound for years or even ruined by such costs become.
In addition, to avoid the costs of such a process, whistleblowers would likely be forced to accept improper settlement agreements and also risk their reputations being publicly attacked for years as the legal proceedings drag on. Therefore, we need to interpret this article narrowly and put in place additional safeguards to offset these possible unintended consequences of article 22.
The paper also remains blurred in other parts. What is a "significant" grievance for the SPD? During the Bundestag debate on May 15 of this year, we heard how great the scope for interpretation is, even among comrades, when it comes to the status of a whistleblower. Whether or not the official Stephan Kohn was a whistleblower remains to be seen. In any case, he felt like one.
The reactions of the speakers? Helge Lindh (SPD) brought up a lot of incriminating keywords such as service law, disciplinary law, duty of loyalty, conspiracy theory, fake news, pseudo-facts, assumptions, allegations, inconclusive. Other speakers also wanted to revoke the status of the official. The allegations are irrelevant, absurd, unsuitable, etc. Christine Aschenberg-Dugnus from the FDP even said he should only have acted according to instructions. The debate was a cautionary example for whistleblowers.
I also miss an SPD position in the event that whistleblowers want to address the public directly.
Unlock completely new dynamics
Does it show on a larger scale, e.g. whistleblowing and EU fisheries rights, that the "whistleblower phenomenon" could get a new place in the public with a new level of effectiveness? Are there any signs that politicians and companies will have to adjust to more whistleblowing and whistleblowing in the future?
Rainer Winters: Companies with more than 50 employees and communities with more than 10,000 inhabitants will be obliged to open up to whistleblowing. That will unleash completely new dynamics.
At the same time, many people are depressed about politics and financial inequality. The dispute over fishing rights scrutinizes a complex injustice. Whistleblowing can help immensely to ensure that countries like Guinea and Angola have fewer illegal fishing activities and that coastal residents can eat their own fish at an affordable price on the doorstep.
Johannes Stefansson's whistleblowing stands out here, of course. Johannes first gave his information about money laundering and corruption around fishing rights in Namibia to Wikileaks. It's good that there are Wikilekas who gave the information to a research unit at Al Jazeera. After a sensational video from Al Jazeera, fisheries minister Bernhard Esau was not the only one who was arrested.
In November 2019, the government's omnipotence SWAPO suffered major setbacks in the presidential and national assembly elections for the first time in 30 years. What is seen as a direct result of the scandal is what I call a whistleblowing success in which democracy won. Namibia owes a great deal to one whistleblower, a whistleblower who, however, appears to have been poisoned (not yet fatally) because of his action.
"Many states are further than Germany"
What about legal security for whistleblowers in other countries? Are there any who have made it further? From which the EU or Germany can take an example?
Rainer Winters: Germany does not yet offer any legal protection for whistleblowers, with the exception of a narrow requirement for civil servants to report things like bribery. Many states are further along than Germany. 14 EU countries have some kind of whistleblower protection law. Ireland, Belgium, Hungary and the Netherlands should be looked at as role models. It is also worth taking a look at the laws in Lithuania and Slovenia. Croatia's whistleblower protection law is good, but there is still no precedent.
There are now around 50 whistleblower protection laws around the world, and Germany is not one of them. In my opinion, this is a sign of poverty for a country that considers itself to be very constitutional. Twenty years ago there were only two such laws, in the United States and in the United Kingdom. We can still learn a lot from these countries, even if the USA offered Snowden, Assange and Manning the opposite of protection.
Whistleblowers need external support
Are there any key points in the legislative proposal that absolutely need to be improved?
Rainer Winters: Since external reporting offices will become more important in the future, the legislative proposal should address this more closely. In terms of the EU directive, we need an independent base in society that supports whistleblowers. It is not enough to set up a 500th agency to record whistleblower cases. The statement by the ECB that it only wants to protect whistleblowers if they report internally is an important signal for us that whistleblowers need support from external bodies.
The control of one authority by the other harbors the risk of multilateral concealment. Take the Wirecard case, where government agencies such as Bafin, APAS, finance ministries and public prosecutors are once again losing a lot of trust. The SPD proposal for a "whistleblowing authority" in a financial supervisory authority sounds like building a state within a state.
It is also important to clarify the sanctions that companies, authorities and state-affiliated companies face if they unjustifiably terminate whistleblowers. Similar to the Renewable Energy Sources Act, there should be specific euro amounts that whistleblowers are entitled to as compensation.
We need a reward system. Why don't we think outside the box, for example to Nigeria with its whistleblower reward program? Or in the USA whistleblowers receive a certain percentage of the embezzled sum that they drew attention to and that was flushed into the coffers of the state after the whistleblowing.
Then there is no mechanism that also protects secret service employees, be it an external official reporting point outside of the BND, BfV and state offices. Given the importance of the secret services and the revelations of Edward Snowden, a whistleblower protection law without protection for secret service employees would be only half-hearted.
If, as an employee of a larger company, for example Google, Siemens, BMW, a major bank or even a supermarket chain, I decided to leave the usual register and pass on important information. How can I protect myself legally?
Rainer Winters: For me, the core issue of whistleblowing is that whistleblowers remain protected. What use is whistleblowing if it comes at the expense of the whistleblower? So my first message: don't go public for now.
I advise contacting competent intermediaries and lawyers on controversial issues before whistleblowers provide explosive information. Which whistleblower wants to be able to assess whether national or EU law is applicable in their case?
In addition, German law is often entangled to the point of being confusing. Whistleblowers need the support of people and institutions who understand the rights of whistleblowers. This is the only way to make an informed decision on how whistleblowers can be legally protected. Each case is very individual, each whistleblower has their own vulnerabilities.
If, in view of existing studies, one assumes that misconduct occurs in half of all large companies in terms of whistleblowing, the potential here is very large.
The Bosch case with Karsten vom Bruch is an example of the power with which large companies legally bind whistleblowers for years. The case also shows that it is not absolutely advisable to turn to the works or staff council. I advise you to get a precise picture of the staff representatives. However, I see being a member of a trade union as a great advantage. Because they have the financial and legal resources to help.
"The IT sector also has enormous potential"
Are there areas in which whistleblowers are particularly active?
Rainer Winters: A significant part of whistleblowing happens in the financial sector, also because of the enticing rewards here. But I would like to mention the environment, which can certainly benefit enormously from whistleblowing, such as, for example, pollution from ships. The Americans have created an effective reward system, which we could now adapt to German law. The US Act to Prevent Pollution from Ships (APPS) implements the MARPOL protocol, which prohibits pollution on the high seas.
Most of the illegal pollution occurs outside of US territorial waters. But the US offers whistleblowers a cash bonus based on this law. In this way, crew members are rewarded for taking this risk.At the same time, the reward system serves as an incentive for crew members of other ships, for inspectors and investigators. Why shouldn't Germany be able to do that too? For this, however, the pollution of seas and oceans should be explicitly included in the law.
The IT sector also has enormous potential. Just recently, I was contacted by an engineer who pointed out the hidden security risks in smart hospital technology from General Electric (GE). One day after he hosted a conference on the subject, his father died - and so did his mother through the suffering this year. He suspects his father was the victim of retaliation against his whistleblowing. He has now been suing GE in court for years.
This case shows that the Whistleblower Protection Act has to be written by professionals. Because it protrudes into many areas of life.
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