Repercussions for revealing corruption

The new EU Whistleblower protection directive is a huge step forward, but journalists and activists still need to exercise caution in their work with whistleblowers. New principles for journalists offer a much needed guide.

At the start of April, I was moderating a panel at the conference Dark Havens, organised in cooperation with Transparency International by the Disruption Network Lab, a Berlin-based platform of events and research focused on the intersection of politics, technology and society.

Titled “Silenced by power: anti-corruption journalists and whistleblowers facing violence and persecution,” the panel focused on the stories of three investigative journalists and a whistleblower who have faced retaliation for their work.

We opened with the video Transparency International produced for the 2018 anti-corruption award, given posthumously to Daphne Caruana Galizia. Her assassination in October 2017 has still not attracted sufficient investigation from authorities in Malta, as her sons highlighted in a statement provided for the conference.

Pelin Ünker presented her situation as the only journalist to face charges for their reporting of the Paradise Papers. Although one case against her has recently been reluctantly dismissed by the courts, Pelin still faces a jail sentence in Turkey for her reporting of the former Prime Minister’s family’s shipping companies established offshore in Malta.

Investigative and broadcast journalist Khadija Ismayilova, under travel ban in Azerbaijan, sent a video detailing the repeated attacks levelled against her by the government, from spying and blackmail, to imprisonment, to trumped up charges. “I felt as if the government of Azerbaijan was projecting their crimes onto me,” she deadpans in the video.

A thread running through these stories was the importance of collaborative networks of investigative journalists. Thanks to connections with organisations like OCCRP, the world is much smaller for an investigative journalist in Azerbaijan than it was 15 years ago, Khadija explained. After Daphne’s murder, journalists worked together on The Daphne Project to complete her investigations and keep her family’s quest for justice in the public eye. For Pelin, collaboration is an essential means of increasing security against legal attacks.

For the fourth story in focus, Stéphanie Gibaud, the UBS whistleblower from France, described her nightmarish past decade, which began after she refused to delete files detailing how her work in the PR and events department of the Swiss bank’s French operation had been used to take accounts ‘offshore’ to Switzerland where they would be subject to lower taxes.

Years later, after being mistreated by the bank and taking her complaint to the French Ministry of Labour, she was approached by the Ministry of Finance and enlisted as an undercover witness to reveal the ongoing fraud still suspected of taking place at UBS at the time.

Hers is an example of the damage that can be done to a whistleblower’s life when those acting on their information do not afford them sufficient protection. Her name was leaked to the media, who revealed her identity. Experiencing what she describes as a ‘social death’ and extended unemployment, she wrote a book attempting to highlight the collective plight of whistleblowers. Partly as a consequence of that book, she has been through court case after court case, some of which are still ongoing.

Stéphanie’s story contrasts starkly with the example of John Doe, the still anonymous whistleblower who leaked the Panama Papers files to Süddeutsche Zeitung. In his keynote address at Dark Havens, Frederik Obermaier from Süddeutsche emphasized the secrecy that surrounds that person’s identity, saying he could never tell anyone who it is, because he himself doesn’t know.

The new EU directive on whistleblower protection, if transposed properly into national law in Member States, will create a strong legal basis for protection against retaliation by employers. Recent legislation in Australia sets a standard other countries should aspire to as they implement the directive, particularly in its provision that companies must proactively implement systems to protect whistleblowers, before they experience potential detriment or retaliation.

But others who engage with whistleblowers, whether in the media, law enforcement or civil society, should continue to be extremely vigilant that their actions don’t put whistleblowers in harm’s way.

Once a whistleblower’s identity has become known, broad public support and public recognition of their courage can serve as a buffer against further retaliation and mistreatment. As Stephanie emphasised, however, the best case scenario is usually to remain anonymous. This is not always straight forward, especially in smaller organisations. Three US organisations — the Government Accountability project (GAP), the Project on Government Oversight (POGO) and Public Employees for Environmental Responsibility (PEER) — have recently published a guide for Whistleblowers called Caught Between Conscience & Career: Expose Abuse Without Exposing Your Identity.

Simultaneous to the event in Berlin, journalists were meeting in Perugia for the international festival of investigative journalism. There, they agreed the following principles for working with whistleblowers in the digital age.

1. First, protect your sources. Defend anonymity when it is requested.

2. Provide safe ways for sources to make ‘first contact’ with you, where possible.

3. Recognise the costs of whistleblowing for the whistleblower, and prompt them to think through ahead of time how to cope when the story breaks.

4. Verify material focusing on the public interest value of the information, not on your view of the attitudes or opinions of the source or whistleblower.

5. Take responsibility for your digital defence and use encryption. Even though encryption may not completely defend your source, it offers important first-line protection.

6. Determine the biggest threats to you and your source, and what specific steps you need to take to protect both of you

7. Explain the risks of digital exposure to your source or whistleblower. On sensitive stories, train your whistleblowers in basic digital security

8. Publish original documents and datasets in their entirety where possible and safe to do so, recognising the importance of datasets in stories.

9. Securely delete data provided by sources, when asked, to protect confidential sources, consistent with ethical, legal and employer obligations.

10. Ensure any digital drop boxes for confidential sources and whistleblowers offer a good level of security, and, for higher-risk materials, anonymity.

11. Understand the country, regional and international legal and regulatory frameworks for protecting confidential sources and whistleblowers.

12. Encourage news publishers to practice their responsibility to provide proper data security for journalists, sources and stored materials, along with appropriate training and policies to guide journalists.

These principles, like the EU directive, don’t have the power to undo damage already done. But, hopefully, one of the lasting impacts of the Panama Papers can be a better understanding of best practice in working with whistleblowers that will increase their safety and include them in the collaborative, protective approach that today’s best investigative journalism aspires towards. As Stephanie’s story illustrates, they should guide the actions of authorities, too.

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