[LUM#7] Where does the term "whistleblower" come from?
Heroes to some, renegades to others, whistleblowers are now a fixture in the legal landscape. What do they tell us about our society, and what role should they play in the administration of justice? It’s a conundrum, caught between the demand for transparency and the risk of manipulation.
Their names are Julian Assange, Edward Snowden, and Irène Frachon, and they owe their fame to revelations about torture practices in Iraq (Wikileaks Reveals the Truth About the War in Iraq, YouTube AFP, 2011), illegal NSA surveillance, and the dangers of Mediator (The Mediator Scandal, Le Monde, 2021).
Behind these few high-profile figures, there are many others—anonymous individuals—who have alerted the public to a situation they believed was harmful to society. What they all have in common is that they sacrificed their careers, often their social lives, and in some cases even their freedom, in the name of an interest they deemed greater than their own: the public’s right to know a truth that, without them, would never have sparked a scandal or led to an investigation.
White Knights, Fake News, and the Snowball Effect
“Public authorities have long relied on private citizens,” explains Marie-Christine Sordino, professor of criminal law at the Faculty of Law and Political Science. “In the past, we used to talk about ‘informing’ or ‘denouncing.’ But today, we prefer the term ‘reporting’ to those terms, which evoke dark periods in history.”
A practice that has taken an unprecedented turn in recent years. In 2010, the organization WikiLeaks orchestrated the leak of tens of thousands of confidential diplomatic cables. A veritable seismic event that sparked a new awareness: in an age when the best-kept secrets can fit on a USB drive and leak onto the internet, no one is safe from revelations with global repercussions. “We must ask ourselves about the circulation of these revelations, ” says the criminal law expert. “We live in an information society where everything moves very quickly and where a reputation can be ruined in just a few hours.” In the information war waged by states or companies, a whistleblower can quickly become a weapon of mass destabilization.
To prevent abuses, lawmakers have been striving to establish clear guidelines for the status of these whistleblowers. This has proven to be a daunting task: since 2001, roughly a dozen laws have addressed the issue. The most recent, the Sapin II Law of December 9, 2016, on transparency and the fight against corruption, places the concepts of selflessness and good faith at the heart of its framework. Reports intended to harm a competitor, or those attempting to cloak a personal interest in the guise of virtue, are deemed invalid. This distinction is not always clear-cut.“In a health scandal, the concept of the public interest may seem clear. It’s more complicated in the case of accounting and financial law,”notes Marie-Christine Sordino.
Democratic crisis
The issue also concerns the resources available to the judicial system to handle complex and costly cases. “The reliance on whistleblowers reveals a certain helplessness on the part of public authorities in the face of citizens’ ever-increasing demand for transparency. The prosecutor’s office simply can’t keep up,” the lawyer sums up .
Beyond its legal dimension, the figure of the whistleblower symbolizes a lack of trust in institutions. A lack of trust in the justice system—which 45% of citizens say they no longer trust—and a lack of trust in the press in the age of fake news… “Whistleblowers are essentially alerting us to a deep-seated social malaise,” analyzes Marie-Christine Sordino, who is equally concerned about the demand for absolute transparency: “This ideal can lead to a dictatorship, to a society of constant suspicion.” This is all the more worrying because, as she points out, transparency and truth are far from synonymous:“People who blow the whistle often have scores to settle, personal issues… Good faith and selflessness are rare! Transparency on everything would mean it’s up to the citizen to sort things out… Are we ready for that?” ¤
A Brief Guide for Whistleblowers
While the Sapin II Law states that “a person who discloses a secret protected by law is not criminally liable, provided that such disclosure is necessary and proportionate,” certain requirements must still be met to remain within the law and qualify for protection. The first of these is acting in the public interest. The whistleblower must be motivated by the public interest and not by personal considerations. Another condition—the most controversial one—is the obligation to first alert a superior (or the contact person designated by the company), who must, within a “reasonable timeframe,” take action to resolve the issue. The confidentiality of the whistleblower is, at this stage, theoretically guaranteed by their superiors. Only in the absence of a response from their superiors will the whistleblower be justified in making the matter public, thereby becoming a true whistleblower.
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