[LUM#7] What are whistleblowers called?
Heroes to some, renegades to others, whistleblowers are now an established part of the legal landscape. What do they tell us about our society, and what role should they play in the administration of justice? A headache, between the need for transparency and the risk of manipulation.
Their names are Julian Assange, Edward Snowden or Irène Frachon, and they owe their fame to revelations of torture practices in Iraq(Wikileaks révèle la vérité sur la guerre en Irak, Youtube AFP, 2011), illegal NSA eavesdropping or the dangers of Mediator(Scandale du Médiator, Le Monde, 2021).
Behind these few headliners, there are many others, anonymous, who have alerted the public to a situation they felt was harmful to society. What they all have in common is that they have sacrificed their careers, often their social lives, and for some, even their freedom, in the name of an interest they considered to be greater than their own: the public's right to know the truth, which, without them, would never have provoked a scandal or opened an investigation.
White knights, fake news and the snowball effect
For a long time now, public authorities have had recourse to private individuals," explains Marie-Christine Sordino, professor of criminal law at the Faculty of Law and Political Science. In the past, we used to speak of 'denunciation' or 'whistle-blowing'. Today, however, we prefer to use the term "signalling", which evokes the dark days of history.
This practice has taken on a new dimension in recent years. In 2010, the Wikileaks organization orchestrated the leak of tens of thousands of confidential diplomatic cables. It was an earthquake that sparked a new awareness: at a time when the best-kept secrets can fit on a USB stick and leak onto the Internet, no one is safe from revelations with global repercussions. We need to look at the circulation of revelations," says the criminal lawyer. We live in a fast-moving information society, where a reputation can be ruined in a matter of hours. In the information war waged by governments and companies alike, a whistleblower can quickly become a weapon of mass destabilization.
To prevent abuses, legislators are striving to define the status of whistleblowers. Since 2001, 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 notions of disinterest and good faith at the heart of its provisions. Signals aimed at harming a competitor, or attempting to drape a personal interest in the garb of virtue, are declared offside. Not always an easy distinction to make. " In a health scandal, the notion of general interest may seem clear. It's more complicated in the case of accounting and financial law ," notes Marie-Christine Sordino.
Democratic crisis
It's also a question of the resources available to the legal system to deal with complex, costly cases. "The use of whistle-blowers reveals a certain powerlessness on the part of public authorities in the face of ever-increasing demands for transparency on the part of citizens. The public prosecutor's office can't keep up," sums up the legal expert.
Beyond its legal dimension, the figure of the whistleblower symbolizes distrust of institutions. Distrust of the justice system, which 45% of citizens say they no longer trust, distrust of the press in the age of fake news. .. " Whistleblowers are basically alerting us to a deep social malaise " , analyzes Marie-Christine Sordino. The whistle-blowers are basically alerting us to a deep social malaise" analyzes Marie-Christine Sordino, who is equally concerned about the injunction of absolute transparency: "This ideal can lead to a dictatorship, to a society of permanent suspicion". This is all the more worrying given that, she stresses, transparency and truth are far from synonymous: " People who reveal things often have scores to settle, personal problems... Good faith and disinterest are rare! Transparency about everything would mean that it would be up to the citizen to sort things out... Are we ready for that?" ¤
A guide for whistle-blowers
While the Sapin II law states that "a person who violates a secret protected by law is not criminally liable, provided that such disclosure is necessary and proportionate", there are still a number of commandments that must be respected to remain within the law and benefit from protection. The first of these is to act disinterestedly. The whistleblower must be motivated by a sense of general interest, and not by personal considerations. Another condition, and the most controversial, is that the whistleblower must first alert a line manager (or the person designated by the company) who must, within a "reasonable time", take action to resolve the problem. At this stage, the confidentiality of the person making the report is theoretically guaranteed by his or her hierarchy. Only in the absence of a response from his or her superiors will the whistleblower be entitled to make the matter public, thus becoming a genuine whistleblower.
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