- Department of Business amendment to Protected Disclosures Act now requires whistleblowers to prove they acted in the ‘general public interest’ when using ‘commercially-valuable’ information.
Dublin, 4 July 2018
A group of leading whistleblower-protection organisations, lawyers and practitioners has written an open letter to the Minister for Business, Enterprise and Innovation, Heather Humphreys TD calling on her to withdraw an amendment to Ireland’s whistleblower law which could lead to workers facing legal action or criminal prosecution and allow businesses to stop their employees from reporting fraud and corruption to the regulators and the Gardaí.
The amendment has been made under the EU Protection of Trade Secrets Regulation and has recently been introduced by Minister Humphreys to transpose the EU Trade Secrets Directive. The regulation amends Ireland’s Protected Disclosures Act 2014 (PDA) to require whistleblowers to show they were motivated by the general public interest, even if they report a crime to the relevant authorities and their allegations are true.
‘This represents the single-most significant set-back for the fight against white-collar-crime in a decade’, said John Devitt, Chief Executive of Transparency International (TI) Ireland. ‘Banking and private healthcare whistleblowers are now going to think twice about coming forward. Requiring a whistleblower to show they were motivated by the general public interest means that many whistleblowers will be expected to show that their motives were pure, that they bore no ill-will towards their colleagues or that they were the ideal employee. Lawyers for rogue employers or trade-secret holders will inevitably question the whistleblower’s character to show that they were motivated by malice or self-interest’.
‘What’s more, the amendment was introduced with little or no public consultation and will have a serious chilling effect on whistleblowers in our banks, private health-care providers and pharmaceutical companies. Patients, consumers and the general public will ultimately suffer’, he added.
The group of lawyers and practitioners has claimed that the regulation ‘creates a Kafkaesque legal absurdity whereby it may be a criminal offence for a whistleblower to report a criminal offence’ and points out that whistleblowers face up to three years in prison and a €50,000 fine for making a protected disclosure using trade secrets where they cannot prove they were motivated by the public interest.
A trade secret can be considered a trade secret if information has a commercial value because it is secret. While the onus will be on an employer or other trade secret holder to prove that information has commercial value, they will be able to take legal action against anyone, including whistleblowers who use information without the trade secret holder’s consent. This means that whistleblowers will have to bear the legal costs of defending themselves against allegations that they stole trade secrets.
The EU Trade Secrets Directive sets out four grounds that allow whistleblowers to use trade secrets including the right to exercise their freedom of expression, the right to make disclosures to worker representatives and to ‘protect a legitimate interest’ defined by national law. However, the Department of Business has amended the PDA to require that whistleblowers comply with one of the four grounds – requiring them to prove they were motivated to protect the general public interest. The letter to Minister Humphreys has called on her to add all of these grounds or remove them altogether from the PDA.
‘Ireland had the strongest whistleblower law in the EU and had inspired reform with its legislation around the world. It looks like the Government has broken something that didn’t need to be fixed. Irish whistleblowers, business and the Irish public will be the real losers here’, said Anna Myers, Director of the Whistleblowing International Network.
Click here to view the letter