[LUM#7] What do the names of whistleblowers 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 in Iraq (Wikileaks Reveals the Truth About the War in Iraq, YouTube AFP, 2011), illegal NSA wiretapping, and the dangers of Mediator (The Mediator Scandal, Le Monde, 2021).
Behind these few high-profile figures, there are many others—anonymous—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—and often their social lives, and in some cases even their freedom—in the name of a cause 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, a professor of criminal law at the School of Law and Political Science. “In the past, we used to talk about ‘delation’ or ‘denunciation.’ 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. It was a veritable seismic event that sparked a new awareness: in an age when even the best-kept secrets can fit on a USB drive and be leaked online, no one is safe from revelations with global repercussions. “We need to 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 governments and corporations, a whistleblower can quickly become a weapon of mass destabilization.
To prevent abuses, lawmakers have been striving to establish a legal framework for the status of these whistleblowers. This has proven to be a daunting task: since 2001, about ten laws have addressed the issue. The most recent of these, the Sapin II Act 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 public health scandal, the concept of the public interest may seem clear. It’s more complicated when it comes to accounting and financial law,”notes Marie-Christine Sordino.
Democratic Crisis
The issue also concerns the resources available to the judicial system to take on complex cases that require significant investment. “The reliance on whistleblowers reveals a certain powerlessness on the part of public authorities in the face of an ever-increasing demand for transparency from citizens. The prosecutor’s office can’t keep up,” the lawyer summarizes .
Beyond its legal dimension, the figure of the whistleblower symbolizes mistrust of institutions—mistrust of the justice system, which 45% of citizens say they no longer trust, and mistrust of 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 come forward often have scores to settle, personal issues… Good faith and selflessness are rare! Transparency about everything would mean it’s up to citizens to sort through it all… 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 be eligible for protection. The first of these is to act selflessly. The whistleblower must be motivated by a sense of the public interest and not by personal considerations. Another condition—and 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 time,” take action to resolve the issue. At this stage, the confidentiality of the person making the report is, in theory, guaranteed by their superiors. Only if there is no response from their superiors will the person making the report be justified in going public with the matter, thereby becoming a true whistleblower.
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