Much attention was focused recently on President Obama’s decision, in the final days of his presidency, on commuting the sentence of Chelsea Manning, who provided certain classified information to WikiLeaks. In France, new legislation has recently been passed and implemented harmonizing the protection of whistleblowing employees (https://www.legifrance.gouv.fr/affichTexte.do;jsessionid=4BBFD240827AF0FD9A6340FF254E6F1B.tpdila21v_3?cidTexte=JORFTEXT000033558528&categorieLien=id).
Who is concerned?
Under the new regulation, whistleblowers are defined as “any individual who reveals or reports, acting selflessly and in good faith, a crime or an offence, a serious and clear violation of an international commitment which has been ratified or approved by France or of an unilateral act of an international organisation adopted on the basis of such commitment, or a serious breach of a law or regulation, or a serious threat or harm to the public interest, of which the individual has had personal knowledge”.
Facts, information or documents, regardless of their form or the manner in which they are materialised, which are subject to professional secrecy rules (lawyer or doctor) and national defence secrets are excluded from the scope of the new rules.
The law provides that in order to benefit from the protection afforded by the new rules, whistleblowers must follow a specific procedure:
- First, the report must be made to a direct or indirect supervisor or a person appointed for this purpose;
- If such report is not followed by any action (or in case of serious and imminent danger, or where irreversible risks are triggered), the report can be made to the judicial or administrative authority, or the representative of a professional order;
- As a last resort, the report may be made public/reported to the press.
The report may also be addressed to the defender of rights (“Défenseur des droits”), an independent administration that acts as an ombudsman that will help the whistleblower to redirect such report to the relevant authority.
Internal reporting procedures must be implemented by private and public sector entities employing at least 50 employees. These procedures must ensure strict confidentiality of the identity of the whistleblower, the identity of the person on which the report is made and the information collected. An upcoming government decree (which has been announced to be promulgated in March 2017) will specify the conditions and modalities under which these procedures should be implemented.
Larger companies attaining a sufficient turnover and headcount are required to implement additional measures (including compliance programs).
Protection afforded to the whistleblowers
The Sapin II Law provides for anti-retaliation rules, and protects whistleblowing employees (in compliance with the abovementioned rules) against discrimination. Protection is also afforded to the person in respect of which the report is made. Measures contravening such principles are susceptible of being declared null and void, and employees dismissed in breach of such rules may bring an action before the Employment court, in summary proceedings.
Moreover, whistleblowers cannot be held criminally liable for disclosing a secret protected under French law, provided the disclosure is necessary and proportionate to safeguard the interests involved and complies with the reporting procedures provided by the law.