Whistleblower Rights and Protections: A Comprehensive Analysis of Alerting Mechanisms and Legal Immunities

Extract

[...] The assertion of a duty to alert In law, articles 40 and 40-2 of the Code of Criminal Procedure provide for an obligation to alert judicial authorities and public authorities in the event of knowledge of a crime or offense in the exercise of their functions (Docs 2 and 5). This obligation of denunciation has the purpose of «to prevent or limit the effects of a crime » and must be carried out by any ordinary citizen while public officials must report the commission of an offense, crime or misdemeanor (Doc 5). This qualification of duty can be supported by Article 15 of the DDHC which provides that «society has the right to demand an account from any public agent of its administration» (Doc 5). [...]

[...] The whistleblower, especially when he is a public agent, enters into conflict with his loyalty towards the institutions, towards the democratically elected political authorities and his loyalty towards his hierarchy (Doc 14). The alert can also harm different secrets that the whistleblower was required to respect, such as the professional secret, the business secret (Docs 6 and 14). The act of alerting is like transgression of the norms' (Doc 14). That is why this duty of alerting is excluded for the most protected secrets: the national defense secret, the professional secret and the secrets of judicial deliberations, of the investigation and of the judicial instruction (Doc 17). [...]

[...] The legislative developments in this area demonstrate a willingness to encourage the revelation of violations of the European Union's financial law and corruption cases (Doc 13). This protection can be done through the referral to the Defender of Rights, which since the law of 21 March 2022 has competence to advise and guide whistleblowers, and may even collect the report that falls within its competence and transmit the alert for which it is incompetent (Doc 3). This protection takes the form of a criminal immunity that prevents prosecutions for violating a secret protected by the exercise of the right to alert (Doc and for persons subject to a reporting obligation, this immunity paralyzes prosecutions for 'defamatory denunciation' (Doc 6). [...]

[...] Then, the whistleblower must be in good faith, they believe in the accuracy of the facts they denounce and do not act with the intention of harming (Docs 5 and 16). Then, the whistleblower must respect the gradation in the transmission of the alert and must only make it public in the last resort but must respect the 'three successive phases whose law fixes the order » (Doc 10). This gradation in the publicity of the alert is in line with the recommendations of the Council of Europe (Doc the whistleblower must resort to internal alert mechanisms before alerting external authorities and in case of inaction of the latter he may make his alert public. [...]

[...] The whistleblower, whether a public agent or a private sector employee, cannot be subject to 'reprisals' due to their reporting, they cannot be subject to discrimination in their professional career or be subject to disciplinary sanctions (Docs 8 and 12). The judicial assessment of the whistleblower's criteria, a protective assessment of the latter The protection mentioned above only applies when the criteria for defining the whistleblower are met. Thus, the whistleblower must report a fact relevant to the general interest or the protection of a public interest and their reporting must be necessary to protect this interest. [...]