Updated: Oct. 8, 2019 (Initial publication: Nov. 22, 2018)

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THE IMPOSSIBLE UNICITY OF THE LEGAL CATEGORY OF WHISTLEBLOWERS

by Marie-Anne Frison-Roche

ComplianceTech©. Pour lire le document de travail en français, cliquer sur le drapeau français

This working paper served as a basis for a conference done in French for the Centre de droit comparé (Center for Comparative Law) in Paris on 23 November 2018.

Updated, it has served as a basis for an article published in French in a book of the Société de Législation comparé (Society of Comparative Legislation).

 

________

 

"The whistleblowers". This is a new expression. Which wins a full success. Barely heard once, we hear it everywhere ...

A theme not only of academic teaching, but rather a topic of daily conversation. Because it is every day that we speak about it, in terms more or less graceful. For example President Donald Trump on October 1, 2019 told the press he "wants to interrogate" the whistleblower who would have unlawfully denounced him and would not have, according to him, the right to conceal his own identity, evidence in this according Donald Trump of the false character of his assertions against him, while his lawyer indicates on October 6, 2019 that he does not speak on behalf of a single whistleblower thus taken apart but of a plurality people who gave information against the President of the United States. Even the most imaginative scriptwriters would not have written twists as abruptly or so fast. Spectators, we wait for the next episode, secretly hoping for climbs and slashs.

Precisely if we go to the cinema, it is still a whistleblower whose dedication and success, or even drama, we are told, for the benefit of the global society, and especially of Democracy, since the secrets are fought for the benefit of the truth. Thus, the movie The Secret Man designates Mark Felt as the first whistleblower. Returning to what is often presented as a more "serious" media, for example in France the radio "France Culture" we can learn the story of a historian who worked as an archivist on events that the political power would have wanted to keep hidden by possibly destroying their traces but that his profession led to preserve!footnote-1391: here it is expressly presented to the studious listeners as a "whistleblower" ... While the same radio is trying to find the one that could be, as in a kind of contest, the "first whistleblowers"!footnote-1727?. This rewriting of History can be made because finally Voltaire for Calas, or Zola for Dreyfus did they anything else? 

It is also a topic of legislative debate since in the United States the Dodd-Frank Act of 2010 inserted in the 1934 law that established the Securities & Exchanges Commission (SEC) a complete system for retribution and remuneration of whistleblowers, while after elaborating guidelines about about in 2012!footnote-1698, the European Commission has published the text on November 20, 2018 in order to give the character a unified European status, in the device gradually developed to protect the one that was presented in 2018 as who  like that : ""The new whistleblowers' protection rules will be a game changer. In the globalised world where the temptation to maximise profit sometimes at the expense of the law is real we need to support people who are ready to take the risk to uncover serious violations of EU law. We owe it to the honest people of Europe.". Step for the Directive of October 7, 2019. 

In Europe, the Directive first approved by a Resolution of the European Parliament on 16 April 2019 on protection of persons reporting breaches of Union law and then adopted on 7 October 2019 (Directive 2019/78 (EU) of the European Parliament European Union and the Council of the European Union on the Protection of Persons Reporting Breaches of Union law, will have to be transposed in the next two years to the legal systems of the Member States. is not general, since only "violations of European Union Law" are targeted but the character of the "whistleblower" is more generally referred to: it is "whole"!footnote-1699.

In short, the whistleblower is a star !footnote-1390. A kind of historical character, covered with blows and glory, going from Voltaire to Snowden, one as the other being incarnated on the screens!footnote-1681 ....

Recognized by national legislations, which associate to him a legal regime of protection to such a point that, like a tunic of Nessus, it is this legal regime which will define his character and not the opposite. When we read the French law of December 9, 2016 relative à la transparence à la lutte contre la corruption et à la modernisation de la vie économique (on transparency in the fight against corruption and the modernization of economic life), usually known as "Sapin 2 Act", we note that the lawmaker makes much of this character, because he devotes to him the chapter II: "De la protection des!footnote-1682 lanceurs d'alerte" ("The protection of!footnote-1682 whistle-blowers") and that it is by his very protection that the French Parliament formally opens the door of Law to him and throws it openly.

But why a plural? Certainly when we read the recitals of the European Directive of 7 October 2019 on the protection of whistleblowers!footnote-1702, this is only an enumeration of all the subjects about which it is a good idea to to protect them, which encourages us to see in this plural only the index of this non-exhaustive list of topics about which it is good that we are alerted, sign of the lack of definition ... Reading the French law known as "Sapin 2" makes us less severe but more perplex. Indeed, from this plurality covered by the title of the chapter devoted to Les lanceurs d'alerte ("The whistleblowers"), there is no longer any question in the rest of the law, in the very definition that follows, Article 6 which opens this chapter devoted the "whistleblowers" offering the player immediately a singular since it begins as follows:  "Un!footnote-1684 lanceur d'alerte est une personne ..." (A! footnote-1684 whistleblower is a person ..."). No more mention of diversity. The art of legislative writing would have even required that the qualifying article should not be singular but not yet indefinite. 

Thus seem to contradict in this law "Sapin 2" itself the very title which presents the character, in that it uses a definite plural ("the whistleblowers") while the article of definition which presents the topic does it by using the singular indefinite : "a whistleblower....".

This is a first reason to move forward only in a very cautious way, in this "step by step" that constitutes a word-by-word reading: a gloss. This method consists in taking literally the expression itself. The second reason for this technical choice is that the gloss is well suited to an introduction of a collective work, allowing more specific developments to take place in other contributions, for example on the techniques, the difficulties and the limits of this protection, or the history of it, or the reasons for the arrival in French law of these American or Brithish whistleblowers and the way they develop, or not, in other legal systems or other countries.

I will therefore content myself with taking again literally this already legal expression: The (I) launchers (II) of alert (III).

See below developments.

 

1

On the more general fact that cinema is undoubtedly the medium which most seriously restores the state of the Law, c. Frison-Roche, M.-A., Au coeur du Droit, du cinéma et de la famille : la vie, 2016.

2

L'histoire du premier lanceur d'alerte, France Culture, septembre 2019. 

4

However, precisely the so common use of plurality ("whistleblowers") raises doubts about the uniqueness of the character. On this question, see. all the first part of the developments of this study, which leads to the conclusion rather than beyond the multitude of particular cases, there are rather two kinds of whistleblowers. V. infra I.

6

Thus, the adventures of Snowden were brought to the screen by Oliver Stone in 2016, Snowden. On the question of knowing whether this film "faithfully reproduces" or not the case, Schetizer, P., Le film Snowden est-il à la hauteur de la réalité?, 2017. This article is favorable to the whistleblower, and to the film which tells us with emotion his case, in particular because (sic), it is easier than to read the Washington Post.

7

Underlined by us.

8

Underlined by us.

9

About this directive, v. the developments infra

10

Underlined by us.

I. THE...

This astonishing plurality is due to the observation that the fact preceded the Law. Indeed, very many whistleblowers have already acted, their action targeting such and such a person. Noting this, the Legislator, as with an established observation, takes up all these already cold cases before he prints the phenomenon acquired in legal ordering to collect the advantages and try to limit the disadvantages. He then translates this into a plural, but, immediately resuming, uses a singular (A). In doing so, he hesitates not so much between a plurality but between a duality of whistleblowers, the "disinterested citizen" who in Europe has his preference (B) and the personally interested alerter, whom he pretends not to see in Europe but still accepts it implicitly, without loving it but because this rewarded whistleblower is so effective that it lets him in nonetheless (C). We understand better then that the discomfort is expressed by a plural ....

A. LEGISLATIVE VOCABULARY: BETWEEN "THE" ALARM SOUNDS AND "THE" ALARM SOUNDER "

There were always whistleblower behaviors!footnote-1700, before international texts, then community texts, then French law, drew them in normative ink. As does the ink of the historian, always reconstructive, showing that whistleblowers have always existed but the Law did not know it. The Council of State revealed it in sympathetic ink, dragging any "vigilant citizen" into this new category, closing the door to others.

But as the very specific protection regime must be reserved for the "whistleblower" more by his situation than by his personality, as explained in the recitals of the Community Directive of October 7, 2019 on the protection of persons who report violations of Union law, the characteristic of the beneficiary of such a scheme is unique in that he is in a situation where his probable bravery has led him as much as his possible wickedness: it is that of his position which exposes him to "reprisals"!footnote-1705 This term keeps coming up both in the recitals and in the technical system. It is therefore in the position of the "worker", the text defining the latter in a very broad sense, including not only the employee but also the civil servant or the subcontractor, not only the employee present but also the candidate or the one who left the structure who will suffer the damage of the alert.

Since the criteria for triggering the regime are unique, and since the regime is inseparable from the legal status of "whistleblower", it should always be mentioned in the singular. But if a plural is used so often to refer to "whistleblowers", this is no doubt due to the fact that this unit of regime does not correspond to a unit of conception.

Indeed, because these alerters would be above all "citizens", this excludes any remuneration!footnote-1388 because it is therefore courage, the first of the virtues, which they demonstrate, and not of particular interests. But the European Directive takes care to specify that the legal technique of "customs advisers", that is to say transmitters of information on customs offenses for remuneration, is not covered by the texts. Hide these whistleblowers that I can't see.

Reading this, plurality then turns rather into opposition, because when more generally we read the communications of American regulators, for example those of the Securities & Exchange Commission (SEC)!footnote-1695, or a more generally, authorities applying the Foreign Corrupt Practices Act (FCPA) congratulating those who denounced others and congratulating them on the millions of dollars received in exchange for the information transmitted, it is suspected that there are at least two kinds whistleblowers: the first who would be the "citizen" who denounces the illicit at the risk of his situation because he does not like the illicit and the second who would be the "informed" who aware of the value of the he holds information transmits it to anyone who wants it, in particular the Public Authority in exchange for the reward, this public enforcement thus finding its effectiveness by private enforcement!footnote-1696. For example, on June 28, 2018, the S.E.C. asked to be able to better correlate the reward given to the whistleblower with the gain which it allows the benefit to the State.

If we take note of such a duality!footnote-1715, then only the love of virtue and Ex Post protection are enough for the first, while we must add a reward for the second, higher than that that other interested parties may offer to the information holder, for example the corrupt system itself. However, we often confuse the two in the same character by associating with whistleblowers only one single scheme. This leads to discrediting virtuous people, since one can easily point the finger at the rewards, the fact that he himself committed the act denounced and the interested motives of this one or that one ( whereas this corresponds to the norm of the second subcategory of the whistleblower thought in the financial system); which leads if one remains on the contrary to the virtuous logic of the citizen in love with the Right who acts only for the defense of this one to be astonished by the absence of alert in many cases, because '' no incentive mechanism has been inserted, concretely rewards, and we a fortiori refuse to give it to a guilty party, for example in the form of immunity or leniency, since we are referring to a process of "citizen denunciation" and of a lonely character in love with justice.

 

This plural used by the Legislator, it is all the same astonishing because the idea is well to exceed the crumbling of these various people who in various capacities carry information that they have and communicate it to those who will make good use of it for the good of others. This was in fact already the case for all civil servants because of article 40 of the Code of Criminal Procedure or the Statutory Auditor whose successive circles of alert (corporate officer, partner, court, public prosecutor) mentioned in advance the grading between the internal alert and the external alert.

It is undoubtedly for this reason that the law remains in this plurality and does not reach abstraction, that which characterizes the "legal person", aimed by the Law ("the buyer"; "the child", etc.), covering the plurality of situations and human beings. When the character appears before the Law has conceived it, then the Law pays in the plural or stuttering. We remember the regrettable "consumer or non-professional", sowing confusion for a long time because we had not been able to embrace by a single word, in a single idea a category which in fact is always composed of characters so diverse (so many 'different buyers, no similar children!footnote-1685 ....).

But as the French law of 2016 known as "Sapin 2" does, the doctrine which describes the phenomenon certainly begins its description with a plural but it is for, from the first page turned, use a singular!footnote-1389, bringing out a first quality. This is what legislators also do. For example, it is the European Commissioner for Justice who will have qualified them in the presentation she made of the draft European text when she justified the unification of the legal protection offered to whistleblowers against reprisals : "we owe it to the honest people of Europe".

If we therefore seek to reduce the plurality of all these whistleblowers to find the whistleblower in abstracto, this would therefore be "the honest person". There was the "good father", today there is the "honest person". This is the one that gives the alert, this is the one that deserves protection. This one and not others.

B. EUROPEAN REDUCTION IN THE PLURALITY OF WHISTLEBLOWERS IN THE ABSTRACTO FIGURE OF HONEST PERSON

The interest of such a reduction, which is normally the legislative art itself, is to take the concrete multitude of situations to subsume them in an abstract category instituted by the Law in an abstract figure: the Buyer, the Launcher alert etc

If the whistleblower, whoever it is, is still an honest person, referring to what may have been called "ethical whistleblowing"!footnote-1386, this has many positive and negative consequences. It is therefore a question in Europe of abstracting the whistleblower pra its moral form, expressed by the love of Law, Justice and Morals, with the technical rules which result from it (1). Indeed it is from this moral angle that the legal ordering welcomes the character (2).

1. The abstract definition of the whistleblower by its moral force and the technical rules which result from it

If a person launches the alert, it is by virtue, because he cannot bear to see this violation of the law, this corruption, this money laundering, this tax fraud! No, it's unbearable! As she is virtuous and sees that the legal system does not sanction this violation, then because the legal system remains dormant, incapacitated or even intentionally, while this person has her eyes open, and because she is "honest" can not bear it!

Thus, no longer holding it, she shouts this information which remained hidden, to force the sleeping legal system - and therefore sore - to wake up!

If we conceive of this as the whistleblower, then it is a "hero", a "moral hero", an "admirable hero". And all the more so since it is most often much weaker than those it denounces. This was notably the case for the two people working in the accounts of the Enron company, a company which nevertheless was exemplary and admired by all, in particular for its transparency; these people denounced the castle of glass cards that Enron constituted!footnote-1384.

It is thus better understood that all the texts do not conceive of the protection of the whistleblower as the regime attached to its status but forming part of its status because it is so weak and so exposed that without protection, because it is his very gesture which constitutes him "whistleblower", since it cannot be a profession, so his protection is part of his very status.

This ties in perfectly with the conception that Jhering developed on "The Struggle for Law". It was in these similar terms that the Council of Europe expressed itself on April 30, 2014, considering that the whistleblower was driven by his desire for an effective democracy: we all have a duty to fight so that the Law is effective. Because by his own strength, he is so little ... We must all morally be the heroes of Law.

The legal status of the whistleblower, thus understood its abstract definition of a moral nature, implies consubstantial moral requirements. This is how the whistleblower must be "in good faith" and act "selflessly".

From this perspective, the reason why the person acted is essential.

2. The moral reception of the act which institutes the person launching the alert

This makes it easier to understand than for many authorities, in particular competition authorities, if a person raises the alarm about facts which, without his gesture, would have remained hidden, he must be protected.

As the European Commissioner said in 2018: "you cannot punish the one who acted rightly".

Even if he committed an offense by his very gesture ... This is why the world of secrets will collapse before the beauty of his gesture. The Law will give way more or less before such a force, depending on whether it is the professional secrecy of lawyers in the area of ​​money laundering, now crossed out, or defense secret, on the contrary kept against the tearing of the curtain.

This is why the gestures that the whistleblower himself was able to perform, in particular by actively participating in the reproachful act, for example an international cartel, will no longer be accused of him. The competition authorities will link the morally remarkable status of whistleblower and the leniency mechanism!footnote-1383. This link tends to become automatic ...., in particular in the Community Directive of October 7, 2019!footnote-1703.


C. DISADVANTAGES OF AN IMPLIED MORAL DEFINITION OF THE WHISTLEBLOWER AS "THE HONEST PERSON": WHAT ABOUT THE DEFINITION KILLED OF THE WHISTLEBLOWER AS AN EFFECTIVENESS AGENT FOR SYSTEMS

This abstract conception of the whistleblower which is based on morality, freedom of expression and democracy is above all European. It is quite foreign to an American perception or to an economic perspective, if one succeeds in dissociating the two (1). But it seems however that by not saying this character, much less chivalrous, has also made his entry into Europe (2).

1. The apparent rejection of the mechanical design of an interested whistleblower, useful for the efficiency of the system

Indeed, if we take up the Enron affair!footnote-1686, it is not so much the triumph against the immorality of the president of Enron that we rejoiced. In the report of the United States Senate on the case, the fear was expressed rather at the fact that a listed company could, and for so long, play with the rules of a financial market whose very principle is the information and transparency: opacity had therefore been created by the communication techniques themselves. The financial system, the United States Congress and the regulators learned from this case of the existence of a major systemic risk, a risk that the Securities Exchanges Commission had not detected anything and that they would have continued to ignore if two accountants of the hadn't revealed the rose pot.

Thus the major information was not so much the fraud committed by Enron but the very fact that it was possible, that it was undetectable and that it was masked by an information-based communication. That other listed companies could have done it, could do it, maybe were doing it, would do it tomorrow. Such information is priceless. There followed immediately the reform of American financial law by the Sarbanes-Oxley law, an essential moment in the construction of an American Compliance Law with extraterritorial effect. Many consider that from this systemic information, namely the possibility of constructing an opacity from the rules of communication of information, was born the "Compliance Law"!footnote-1687, that is to say the insertion in the Ex Ante system business of forced information exit.

In this perspective, the whistleblower is purely and simply private enforcement. In this, he is not a political figure moved by the love of laws and morals, a reader of Rousseau and Jhering; he is an agent of Compliance Law, which aims to make Law effective by giving incentives!footnote-1711 to people and entities so that they act so that the result of their action produces the desired effect by the Legislator, this new branch of the Law being an extension of the Law of Regulation!footnote-1688.

From this perspective, the moral reason for which the agent acted is immaterial. The main thing is that it acts. Incentives in this sense should therefore be developed, including those which are contrary to morality, such as greed, without stopping to immoral motivations, such as envy.

Thus, for example, if it is a question of extracting information to prevent systemic risks and reduce the asymmetry of information from which controllers suffer (for example the State for tax fraud; the health authorities for health risks; market authorities for market abuse), whether the whistleblower acts selflessly or not is immaterial. Whether he acts out of revenge, to harm or to obtain a reward (promotion, financial gratification, etc.)!footnote-1704, is not an obstacle.

On the contrary, it should even be interested in all ways to transfer information that it holds and that the Authority which will make good use of it does not have. In fact, for those who have information to give it, they must not only not be penalized (negative reward) but also they must be gratified (positive reward). Indeed, admit that we are not all heroes, admit that we do not all have for bedside book The fight for the Right, admit that the reign of virtue is not what makes us get up every morning .

If we pursue this school hypothesis, which is the starting point for the Economic Analysis of Law, how can we make sure that those who have information which will cost them in any case costly communicate it? We are here in a classic case in Regulation of information asymmetry, difficulty to resolve by injecting adequate incentives Most often, it is the natural incentive of revenge which avoids the Right to ask this question that the Economic Theory of Incentives poses first, since it is very often the spite and the resentment which are the engines of the launching (dismissal in perspective or operated, spite in love, jealousy or envy).

The "pure desire to harm" should only be excluded by law when it relates to someone who, denounced, has nothing to blame himself for. We find this case which tore in 1905 Coquerel and Clément-Bayard and rocked generations of students of the one who acts to harm when he has no benefit for him to harm, without the effectiveness of Law in is more concerned (because Clément-Bayard did not use his Sundays to fly in an airship violating any law). This is why in the legal regime attached to the whistleblower the presumption of innocence of the person denounced is protected.

But if the latter violated the Law and the person who denounced it did so by detestation, why not? If this leads to the effectiveness of the Law and the effectiveness of the systems, welcome to the ill-intentioned but systemically beneficial individual. If the law of silence reigns and it is thus finally broken ... In an Economic Law which we are often told that its "only law" would be efficiency, is it so unreasonable!footnote-1385?

Even more pragmatically, American law rewards the whistleblower financially. Because money in a market economy is the simplest and most effective reward. The "fairer" would say some, since the whistleblower contributes to the efficiency of the economic system and the effectiveness of the Law. This is why the European Regulation which set up the mechanism for reporting market abuse in financial matters has expressly provided for the possibility of organizing financial incentives for even potential violations of the Law in this matter!footnote-1689, since '' it is a question of preserving the integrity of the markets, the concern for systemic risk being taken care of by efficiency and not by morality, a provision which French internal law has meanwhile rejected, while the regulatory authorities for their part publish the figures for the awards awarded in order to increase incentives.

2. The recovery under the European coat of the launcher protected because it is effective: the criterion of the achievement of the goals for which the rules were adopted and the emergence of the whistleblower as a central figure in Compliance Law

But has European and French law really dismissed this conception?

When we read the European Environmental Law which organized in 2018 the protection of the whistleblower, it is above all a question of arousing vocations so that Environmental Law effectively finds a full. For example, in its Communication of 18 January 2018 European Union actions to improve compliance with environmental legislation and environmental governance, the European Commission notes that obtaining evidence is so difficult in this area that the means to obtaining them must be strengthened and that whistle-blower protection would be an effective tool for achieving greater effectiveness.

Even more, to re-read the definition of "whistleblower" by the law known as "Fir 2", we notice first of all that the whistleblower can denounce the violation of the rules of Law, but not the violation ethical rules. Now, if he is moved for his ethical concern, and only for that, but strongly for that, he should be able to denounce the violation of both Law and Ethics!footnote-1387. Foreign texts provide for it, while the Law only grants its protection to the launcher who cares about respecting the Law, but not for those who only cares about ethics, which does not correspond to the definition given of the launcher as "the honest person" ...

Besides, if we read recital n ° 42 of the Community Directive of October 7, 2019 which unifies the protection of whistleblowers, which is inseparable from the character, it is no longer ethical that acts, nor to reward "the honest man", but purely and simply of effectiveness of the rules: "To detect and effectively prevent the serious attacks with the public interest, it is necessary that the concept of violation also includes the abusive practices , as determined by the case-law of the Court, namely acts or omissions which do not appear to be formally unlawful but which go against the object or purpose of the law. ".

Thus, after having rolled out so many examples, in a list which turns out to be non-limiting, after having listed so many reasons to dismiss the secrets, we return to the logic which leads the Law of Regulation and the Law Compliance: mechanisms must be installed in Ex Ante in public or private entities not only for the effectiveness of the rules but also for their effectiveness, that is to say to ensure for any means that they achieve their goal. And the whistleblower is one way to do this. The link between leniency and alert demonstrates this!footnote-1706.

But while the United States easily assumes this instrumentalization of denunciation in the service of systemic efficiency (finance, environment, product safety, etc.), Europe always refers to the ECHR, fundamental rights, the selflessness requirement.

Does this inconsistency not reflect the fact that we cannot find an abstract category of the "whistleblower", depending on whether he is moved by the concern for the rule or by his particular situation? That we do not want to admit that there are two types of whistleblower, one disinterested and moved by what Rousseau designated as "the love of the Law"!footnote-1707, Jhering as "the fight for the Right ", the other interested in the promised reward or the satisfaction of seeing his personal enemy soon on the ground and that we cannot manage to make them both fit into a single legal regime, as long they are strangers to each other, even enemy brothers? This translates this permanent hesitation between the multiple and the singular.

Indeed, when it comes to rewarding the person who gave the information while he himself participated in the offense, the first definition says No, while the second says Yes. When it comes to putting in the definition the unprofessional and disinterested character, the first definition says Yes, while the second says No.

So depending on whether you define the whistleblower abstractly as a being moved by honesty "or by" gain ", depending on whether you want justice to" reign "or law to" reign ", Whistleblower's definition should not be the same and neither should its legal regime.

The European definition of the whistleblower as an "honest person" acting spontaneously for love of justice, which diminishes its effectiveness, more defined in the United States as a carrier of information whose system is private and for which obtaining the system must issue adequate incentives, the simplest of which is the financial reward, shows that through the same expression, there are at least two characters.

Because of all these launchers whose surnames we are taught, two types emerge, which effectively justifies the use of the plural.

II. .... LAUNCHERS ....

There is the white knight and the bounty hunter (A). But it is the gesture that is common to them: that of "launching" (B).

A. THE WHITE KNIGHT AND THE PREMIUM HUNTER

The first character is the white knight who does not hesitate to raise the alarm to save a beautiful in danger, for example the Democracy in danger of dictatorship, or an Economy in danger of corruption, to run to bring the information to the danger of his life, expecting nothing in return, because a knight expects nothing, the accomplishment of his duty sufficient to satisfy him. Whiteness indicates his disinterest. Because it is this quality which is first, which is consubstantial.

If we had put forward more anonymity, we would have thought of the mask, another mark of the lone hero of the night who fights injustice, and he would have been rather dressed in black. But anonymity is not so much in character as in the protection regime!footnote-1709 since the whistleblower, by plume, sometimes likes to proclaim the information he holds and his surname to which he would also like us to join!footnote-1710. Television shows us this way.

The second character is the "bounty hunter" from the Wild West. It is its reverse, running only to get the bonus. It matters little justice, or glory, or "public interest", or the widow and the orphan and other fables. In this, the whistleblower participates in the archaisation of Law, of which Economic Law is the advanced point. Although we target it less in Europe, it is we that we see through the recitals of the Community Directive of October 7, 2019 on the protection of persons who report violations of Union law,; it was even clearer in the Resolution by which the latter approved the text (enrichment of the text is left): "At Union level, the reports and public disclosures resulting from whistleblowers constitute a component in upstream of monitoring the application of Union law and policies: they supply information to the systems in place in the countries and at Union level to enforce the rules, leading to effective detection of breaches of the rules of the Union and to effective investigations and prosecutions in this area, which enhances transparency and accountability. "

Although they are often put together, thus expressing simply by the term "polysemic" the fact that the alert concerns violence against women as well as tax evasion!footnote-1691, they are not the same characters . And efficiency becoming more and more no longer a concern for method (and therefore a secondary principle) but the very principle of Law!footnote-1692. it is likely that the second will prevail over the first, since the concern for efficiency in the protection in Ex Ante of systems by an effective and efficient application of the rules has become the primary subject!footnote-1693. It is also remarkable that this European directive of October 7, 2019 is only about protecting whistleblowers with regard to the effectiveness of Union Law, this and only that, even if the text underlines that member states can go further.

B. THE COMMON GESTURE: "LAUNCH", AND NO LONGER "WHISTLE"

This French term "launcher" is intriguing. Especially in relation to the English term "whistler"

There are more technical and less beautiful terms like that of "alert trigger". But these terms "whistler" or "launcher" are so many images, because finally in the reality of things these natural persons do not whistle, do not launch anything ... These are images, and we imagine a little "the august gesture of the launcher" ...., as we remember those who whistled in the freedom of the 60s, as did and sang Bob Dylan, asking that we listen to the whistler. As he still does in 2012 in a social criticism, mixing genres beautifully.  !footnote-1690

We "throw" an alert, like we throw a ball, like we throw a bottle into the sea, like we throw a bomb, like we throw a cry.

There are therefore and by nature spectators because one cannot "whistle" in the wind or "throw" a ball in the water. Since it is the launching gesture that makes the status of the "launcher", there must be an audience to receive it. Except when we know in advance that there will be no answer, that the answers only the wind knows them. But we are then a poet and not a whistleblower who is a character of action, who is not satisfied with that, who is everything in his movement, in the noise he makes, in the seizure of the world asleep and that he sees unfairly asleep (if he is of the knight category) or whose awakening system has invited him (if he is of the effectiveness agent category).

Because this is what is at stake: on one side of the field, there is the company that would like it to be played behind closed doors, while on the other side of the same field there is the general public who would like everything know and judge everything before the first word is said by the defense, while in the middle of the field, which will soon be the battlefield, stands the victim (s) (defective medication, harassment, violation of his privacy, theft of their data, etc.) victims who do not know whether advertising protects them or, on the contrary, completes them.

In any case, "throwing" is like "walking", it cannot be transformed into "profession", because it takes skill to avoid all the traps of a terrain which is in no way flat. Especially since professional launchers, like listeners, are already there. In Europe we preferred ethics, not wanting to take the risk of the effective blackmailer, to what would however be in the sense the constitution of an expertise. We are therefore still in an amateur activity, because the price of the constitution of expertise is indeed too high in the matter.

This is due to the fact that one perhaps does not believe in the moral postulate previously described and that a perpetually moral being, having the social object of being moral, appears as an oxymoron. That this legal being is also called the Public Prosecutor's Office. The appointment of the first European Prosecutor in 2020, having jurisdiction over corruption, may justify this European conception.

III. .... ALERT

Fire ! Fire ! To the wolf! To the wolf!

But what is the legal nature of this cry? One wonders a lot to know if it is a "right", but if one looks at the future which takes shape the question which arises is it not rather to wonder if these are not machines that will soon be responsible for launching alerts and no longer human beings? (A). While once this alert has been made, this moral start or this systemic function has been fulfilled, does the launcher leave the game or stay there still and then find one or more interlocutors, except to stay, as at the start, a loner? (B).

A. THE LEGAL NATURE OF THE SHOUT: SHOUT OF THE WORRIED HUMAN BEING OR SHOUT OF A "WARNING MACHINE"?

But who is Pierre going to turn to? This does not really matter for the whistleblower himself, since he wants to warn of the fire that starts, the wolf that arrives, the victims who start to fall. He shouts, he takes all means: that is probably why he is a "hero", in any case a media character, all the more famous because he is anonymous. In Watergate, was there not a whistleblower, and is it not to remind him that the whistleblower's lawyer against President Donald Trump chose this newspaper to reply to this one in October 2019?

Law in its wisdom does not like stories, contrary to what Law & Literature tells us, and even when it is Common Law Law advances by qualification, bringing the phenomenon into legal categories. As others make shouts in tables, this "cry" that constitutes an alert, what qualification does it belong to? We often talk about the "right of alert". So would the whistleblower hold a subjective right!footnote-1694? This would take us away from the spontaneous movement.

1. The whistleblower, definitely a human being

Let us take as a first hypothesis that of the human being, titular. It is only for the latter to signal the start of a fire, not to extinguish it. Report a fire that is about to start, so that others can take action before it ignites.

We must reach those who can extinguish it, internally and externally, not extinguish it ourselves.

This undoubtedly explains the link that the Competition or Regulatory Authorities expressly go between launching an alert and a leniency program, since we forgive the person who launched the alert while he was co-author of market abuse: the fire-thrower is admitted, since it is effective.

But precisely because it is above all about efficiency, it is on technology that the Law will count even more than on the virtue of the human being and the endorsement by each of The fight for the Law. This is why the Community Directive of October 7, 2019 on the protection of persons who report violations of Union law will link the launch of alerts with technologies, such as secure internal circuits for the anonymous reporting of facts or persons. .

2. The claim of algorithm designers to propose them as effective whistleblowers

Take as a second hypothesis the algorithm, mechanical alert which, because "mechanical" would be all the more "effective"

Many seem to consider that the human being being fallible (what can we observe?), Even malevolent (does he not act above all to annoy others?), The best pitcher should not be the "worker" but an algorithm .

According to reasoning, denounced with vigor and rightly by Alain Supiot, the human worker was mechanically estimated as inferior to the calculating machine, since the latter can "see everything" and retain everything, observe everything, even anticipate everything, a trend would be to entrust the machines with the task of "raising the alarm". By flashing lights, which cease to be green, turn red when there are anomalies, the strangeness justifying an orange, which justifies human control.

This conception of the control of Compliance by the ability to calculate (which is specific to the machine) and not by the ability to discern (which is specific to humans) is catastrophic. However, it is offered by many service companies. It could in itself constitute a systemic risk.

We come to have to remember what might seem obvious, but probably from advertising to advertising for the benefit of what is common to call "artificial intelligence" which would be the best response to the requirement of Compliance and alert in the event of non-compliance: the "whistleblower" must remain a human being.

What happens to it: is it the business of the one who whistled in the buoyant wind or will the Law impose his interlocutor on him? The divergence of legislative responses shows the decidedly plurality of whistleblowers

B. THE LETTERING OR NOT OF THE LAUNCHER WHAT HAPPENS TO HIS SHOUT

Then what?

This is no longer really the whistleblower's business. Even if he may find it interesting to know what happened to it!footnote-1708, both the Law cares, but at the same time ensures that it cannot, for example, compel the public authorities to act . To give the alert, it is not to constitute civil party. However, this is to cause damage, legitimate if the allegation is likely even if it later turns out to be unfounded, and the whistleblower is not responsible for the absence of fire where there was smoke, is not in principle irresponsible!footnote-1712, the texts organizing protection and not irresponsibility.

If this is so, it has three consequences.

In the first place, the cry launched by nature is upset to be limited within the borders which correspond to a national legal system. Secondly, the cry launched is even more difficult to find in the company or the sector, where the information and whoever holds it is located. Thirdly, since only the gesture counts to save the system, democracy and the victims, it would not matter the victims that the cry thus launched causes.

But is all this as solid as it seems?

First, indeed many authors point out that national legal systems are clumsy to organize legal protection for this character because one could say that he shouts on all the rooftops what he knows, that he does not care about borders, the authors conclude that his protection can therefore only be international!footnote-1697, or at least supra-national, for example organized at the level of the European Union!footnote-1701.

Secondly, even if the United States favors external whistleblowing!footnote-1714, as does British Corruption Law, French Law and the European Directive of October 7, 2019 which harmonizes the status of launchers of alert favors internal alert before switching to external alert.

What remains relevant is the irreparable nature of the damage caused when there was no fire under the smoke. The gradation of the French system which makes the whistleblower an internal figure in the denounced entity, which weakens it certainly but assumes that the author of the denounced facts, the managers and the company are distinct people. It is on the postulate of this distinction that the PACTE Law is based.

And one cannot conceive of a whistleblower who is not protected from his own error if he has alleged a probable fact which later turns out to be inaccurate, if there was smoke without fire , then he will not have to account for it!footnote-1713. We can measure here the extent to which the heart of its protection regime is inseparable from its very definition of whistleblower. Unless it is shown that he was not disinterested and in good faith, which makes him fall from his heroic pedestal and takes away his shield offered by the Law, referring him to the Common Law of responsibility.

If the fire, concealed but accredited by smoke for which all the texts require plausibility, which therefore implies a "charge of allegation" weighing on any whistleblower, nevertheless turns out to have no consistency, the Nor will the whistleblower be blamed for it, since it is only accountable for plausibility and not for truth.

Besides, if the truth is unreachable or not reached, then the whistleblower will have done his duty and the system will remain ineffective. Because in the American conception, it is endowed with power only to be effective and to give an incentive example so that the whistle-blowing machine remains active what a commitment of responsibility would check in a regrettable way; whereas in the European tradition the launcher is endowed with rights, even "fundamental rights" only to better fulfill his duty to fight against injustice.

 

If it turns out that there was no injustice to fight but that it was not driven by intent to do harm, that this launcher looked more like Don Quixote than Batman then probably everyone will regret the failure of the Hero. But perhaps will love him only more.

____

 

 

 

1

As Marjorie Beulay recalls, in her study on Lanceurs d'alerte : la nécessité de l'établissement d'un statut en droit international ? , 2016: "cases today may be less known, or at least, less publicized, such as those of Kathryn Bolkovac, Caroline Hunt-Matthes, James Wasserstrom or Anders Kompass. These are international agents, c that is, United Nations personnel, who have taken on the role of whistleblowers in the face of the practices they witnessed within this organization. The first revealed the existence of a prostitution ring as part of the intervention in Bosnia; the second of the rape cases within the mission of the High Commissioner for Refugees in Sri Lanka; the third revealed a case of corruption within the UNMIK and the latter is the author of the report on the cases of rape of children in the Central African Republic by peacekeepers. " (n ° 7).

2

Recital 36: "The underlying reason for providing protection to these people is their position of economic vulnerability vis-à-vis the person on whom they de facto depend in their work. In the absence of an inherent power imbalance in the employment relationship, for example, in the case of ordinary complainants or citizen observers, there is no need to provide protection against reprisals. ";

3

The SEC reminds that : "The whistleblower program was established in 2010 to incentivize individuals to report high-quality tips to the Commission and help the agency detect wrongdoing and better protect investors and the marketplace.".

4

The S.E.C. describing like that the situation : "The Commission’s whistleblower program has made significant contributions to the effectiveness of the agency’s enforcement of the federal securities laws.  Original information provided by whistleblowers has led to enforcement actions in which the Commission has ordered over $1.4 billion in financial remedies, including more than $740 million in disgorgement of ill-gotten gains and interest, the majority of which has been, or is scheduled to be, returned to harmed investors.". 

5

If we are not satisfied enough to turn it as a question: Are whistleblowers heroes traitors or heroes?, 2017. 

6

On the idea that the more legislative Art manages to be abstract in its terms and the more the plurality of concrete and particular situations manages to express itself, art that Carbonnier brought to its peak, V. Frison-Roche, M.-A ., Le Législateur, peinture de la vie, 2019.

7

Malabat, V. et Auzero, G., Les lanceurs d'alerte2018.

8

Boursier, M.-E., L'irresistible ascension du whistleblowing en droit financier s'étend aux abus de marché, 2016, n°5 : "le whistlebolwing, ou alerte éthique". 

9

Recital 17: "Protection of whistleblowers strengthening the application of Union competition law, including with regard to State aid, would protect the efficient functioning of markets in the Union, to guarantee a level playing field for businesses and to offer benefits to consumers. Regarding competition rules applicable to businesses, the importance of insider reporting in the detection of competition law infringements has already recognized in the leniency policy pursued by the Commission under Article 4a of Commission Regulation (EC) No 773/20041 as well as with the recent implementation of an alert launching tool Anonymous by the Commission. The violations of competition law and the violations of state aid rules concern Articles 101, 102, 106, 107 and 108 of the Treaty on the Functioning of e the European Union and the rules of secondary law adopted for their application ".

10

Frison-Roche, M.-A., Les leçons d'Enron, 2003

11

Frison-Roche, M.-A., Compliance : avant, maintenant, après, 2017

12

This concept will be taken up by the European Directive of October 7, 2019, in its recital No. 88: "When reprisals are taken without being discouraged and go unpunished, they have a dissuasive effect on potential whistleblowers. A clear legal ban reprisals would have a significant deterrent effect, and would be further strengthened by provisions on personal liability and sanctions for perpetrators of reprisals. ".

13

V. in a more general way, Frison-Roche, M.-A., Du Droit de la Régulation au Droit de la Compliance, 2017.

14

What in courteous terms the Community Directive of October 7, 2019 aims in its recital No. 22 in these terms: "Member States could decide to provide that reports of interpersonal complaints exclusively affecting the author of the report, in other terms the grievances concerning interpersonal conflicts between the author of report and another worker, can be communicated via other procedures ", thus allowing that the national Laws limit the publicity of this type of aggressions, which can be and legitimate and effective, because one may want to take revenge on a corruptor or a corrupt ...

15

On a general perspective, and moreover nuanced, of this concern now central in the Law increasingly defined as an instrument of economic efficiency, cf. Frison-Roche, M.-A., Le droit est-il un atout ou un handicap pour les entreprises françaises et nos territoires ?, 2018.

16

Thus, the Community Directive of June 26, 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms in financial matters, modified the state of the Law by inserting this new weapon that is the protection of whistleblowers, protection without which they do not appear. Similarly, the community reform through the 2014 Regulations and the 2015 Market Abuse Implementation Directive has increased the position of whistleblowers, inserting whistleblowing devices in businesses. For a description of the mechanism and its use in French law, see. for example Boursier, M.-E., L'irresistible ascension du whistlebowing en droit financier s'étend aux abus de marché, 2016.

17

V. supra. 

19

Recital n ° 82 of the Community Directive of October 7, 2019: "Preserving the confidentiality of the identity of the person making the alert during the alert procedure and the investigations triggered by the alert is an essential ex ante measure to avoid reprisals. ". This is reflected in Article 16 of the Directive: "Member States shall ensure that the identity of the person making the alert is not disclosed without the express consent of the author to anyone other than staff members competent authorities to receive or follow up on alerts. This also applies to any other information from which the identity of the author of the alert can be directly or indirectly deduced. 2. Notwithstanding paragraph 1, the identity of the person making the report and any other information referred to in paragraph 1 may be disclosed only where it is a necessary and proportionate obligation imposed by Union or national law in the context of 'investigations carried out by national authorities or within the framework of legal proceedings, in particular with a view to safeguarding the rights of defense of the data subject. " (the 3rd and 4th paragraphs specify the link with professional and business secrecy).

20

About the phenomenon of "star", v. the introduction of the present article.

21

Thus in Mélanges Sudre (2018), Maryse Deguergue, in her analysis on "Le droit d'alerte : un nouveau droit de l'homme ?", Writes: "Dealing with the question of whether the right to alert is a new human right seemed an innocuous subject some time ago, but today it seems particularly multifaceted, as the alert has become polysemic and, addressed in recent news by the ethical alert relating to violence committed women and tax evasion "(p.151).

22

Even if it is regrettable, v. in a more general way, Frison-Roche, M.A., Le droit français est-il un atout ou un handicap pour les entreprises et les territoires ?, 2018. 

23

V. supra. 

24

Besides this new version, of 2012, of the song did not like.

26

For example, in its recital No. 66, the Community Directive of October 7, 2019 states: "The competent authorities should also provide reporters with feedback on the measures planned or taken as follow-up, for example referral to another authority, the termination of the procedure due to insufficient evidence or other reasons, or the opening of an investigation and possibly the conclusions of the said investigation and any measures taken to resolve the problem raised, as well as on the reasons for the choice of this follow-up. Communications on the final result of the investigations should not affect applicable Union rules, which includes possible restrictions on the publication of decisions in the field of financial regulation. the same applies, mutatis mutandis, in the area of ​​corporate taxation, if similar restrictions are provided for by national legislation applicable corn.".

27

Recital No. 91 of the European Directive of October 7, 2019 only points out what would have been the application of ordinary law, which is intended to overlap: "It is advisable to provide for the exemption of responsibility for reporting or public disclosure, under this directive, of information in respect of which the reporter had reasonable grounds to believe that its report or public disclosure was necessary to disclose a violation under this directive. should not extend to superfluous information that the person has disclosed without having such reasonable grounds. ". The following recitals cautiously refer to National Laws on and the principle of immunity in the event of obtaining information and evidence thereof in a lawful manner and what happens when it is obtained in a way unlawful, while other systems place limits on the "right" or "duty" of alert when national security is at stake.

28

Beulay, M.,  Lanceurs d'alerte : la nécessité de l'établissement d'un statut en droit international ? , 2016 :"At first glance, it would seem necessary to think about a geographically broader framework since national legislations are victims, at first sight, of their potential intrinsic territorial limits. The best known cases like Edward Snowden and Julian Assange - regardless of whether or not their qualification as whistleblowers - confirm this premonition because of the international dimension of their situation, both in terms of the information transmitted and their personal situation. therefore essential here to supplement, or materially supplement national legislation, but above all because a strictly national approach necessarily seems fragmented and therefore unsatisfactory, in particular because of the cross-border nature of the cases disclosed. " (n ° 3).

29

Thus, recital n ° 4 of the Directive of October 7, 2019 states: "The protection of whistleblowers as it currently exists in the Union is fragmented between the Member States and uneven in one field of action The consequences of whistle-blowing breaches of EU law reported by whistleblowers illustrate how insufficient protection in one Member State has negative effects on the functioning of Union policies. not only in that Member State, but also in other Member States and in the Union as a whole. ".

30

What is logicial since the alert having as end systemic risks prevention, it is well the system's keeper, that is Regulation Authorities which have to be alerted. 

31

About the question of liability, v. supra. 

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