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	Whistle-blowers do not belong in court by Jennifer Baker International Politics and Society Journal Belgium   April 2017   On 16 March, the European Commission introduced a new online tool to help whistle-blowers.   The anonymous tool is essentially an encrypted messaging system run by an external service provider that acts as an intermediary. Only the content of the messages is forwarded to the Commission without any metadata that could identify the whistle-blower. It’s such a simple idea, one wonders why it took them so long to come up with it.   But “whistle-blowers” are suddenly a hot topic for the EU. Never mind the fact that whistleblowing – reporting illegal practice to a higher authority – has been around for decades. Woodward and Bernstein relied on “Deep Throat” in breaking the Watergate scandal in 1972. What has changed, however is the way in which whistle-blowers can protect themselves, and the ways they can be attacked.   When Chelsea Manning disclosed around 700,000 classified military documents in 2010, it was via Wikileaks. When the most famous whistle-blower of recent years, Edward Snowden, decided to make his disclosures, he spent a lot of time teaching the journalists he spoke to about encryption.   Since last year, he has been president of San Francisco–based non-profit organisation, Freedom of the Press Foundation, which tries to help journalists protect themselves and protect their sources… including using “crypto”.   Risks of exposure   Despite the Commission’s new tool, whistle-blowers face huge risks in coming forward, from losing their job and being blacklisted from their industry, to jailtime. Yet they are essential in holding the powerful to account in both public and private bodies. The Commission’s initiative is focussed on anti-competitive business practices: including price-fixing cartels, keeping products off the market or unfairly excluding rivals.   “If people are concerned by business practices that they think are wrong, they can help put things right,” said the EU’s Competition Commissioner Margrethe Vestager.   “Inside knowledge can be a powerful tool to help the Commission uncover cartels and other anti-competitive practices. Information can contribute to the success of our investigations… to the benefit of consumers and the EU''s economy as a whole.”   That will be scant consolation to Antoine Deltour or Raphael Halet, the former PricewaterhouseCoopers employees who disclosed the so-called LuxLeaks scandal. Both received convictions from Luxembourg''s court of appeal on 15 March. Although the court recognised their status as whistle-blowers—and gave reduced sentences from the initial verdict—it nonetheless found them guilty of theft of tax rulings and computer fraud.   Edouard Perrin, a reporter who worked on the Panama Papers as well as LuxLeaks also faced charges. Speaking truth to power is a dangerous business. And last year it was made even more perilous by the EU’s controversial Trade Secrets Directive, a ruling that “resembling a blanket right to corporate secrecy” that “threatens anyone in society who sometimes needs access to companies’ internal information without their consent: consumers, employees, journalists, scientists,” according to the Brussels-based Corporate Europe Observatory (CEO).   Feeling the chill   The Trade Secrets Directive was intended to harmonise EU-wide legislation protecting companies against theft or publication of their intellectual property, customer lists, planned innovations or market strategies. Instead it has had a chilling effect on disclosing corruption. Many in the European Parliament were against it, in particular the Greens group.   Nessa Childers, the only social-democrat MEP to oppose the directive, said it “fails to protect insiders who stand to lose their careers and face harassment and persecution when they blow the whistle on corrupt and unethical behaviour”.   As a sweetener, the Commission promised, alongside the Trade Secrets Directive, to look into rules to protect whistle-blowers, whether acting to expose the state or commercial entities.   The general principle is that whistle-blowers must act in the public interest. What defines the public interest is a grey area, but draconian laws like the UK’s proposed new “Espionage Act” swing the balance of power too far against whistle-blowers.   Under the plans to overhaul to the country’s secrecy laws, whistle-blowers who leak sensitive government information and journalists who report it could face jail time. The Law Commission, which is conducting a public consultation on the plan, has been so inundated with concerns, it has extended the review by a month—the deadline is now 3 May.   On a European level, the Commission is also delivering on its promise by holding a similar consultation. The deadline for submissions is 29 May.   “Whistle-blowers do not belong in court”   Meanwhile in the European Parliament, the Committee on Legal Affairs (JURI) has an own-initiative procedure regarding “legitimate measures to protect whistle-blowers acting in the public interest when disclosing the confidential information of companies and public bodies” that recognises the importance of whistle-blowers as effective in protecting democracy.   According to Green MEP Sven Giegold, scandals like LuxLeaks or the Panama Papers show how important it is to protect those who dare publicise scandals that harm society.   “The fate of people who make scandals public cannot be dependent on the legal situation in the individual EU Member States. Whistle-blowers do not belong in court,” he said. Giegold, and others like him, know that in our so-called “post-truth” era, standing up for what is right in the face of opposition is more important than ever.   Issues such as public health, public finance, violations of human rights, corruption, fraud, discrimination, conflicts of interest and public safety, all deserve protection and should not be at the expense of a company’s desire to make money or a government’s wish to control the populace.   Furthermore, whistle-blowers should not bear the burden of proof: those who disclosure inaccurate information in honest error should still be protected.   Right now most whistle-blowers suffer a great deal as a result of their disclosures: on a micro level those reporting bad behaviour within their companies may face dismissal, demotion or denial of promotion. On a national scale, they may lose their freedom and their homes. Not everyone has the stamina and fortitude to go on the run à la Edward Snowden, which is why we need robust laws to protect those who are trying to protect all of us.   http://www.ips-journal.eu/regions/europe/article/show/we-cant-hear-you-1952/ http://www.eurodad.org/world-press-freedom-day Visit the related web page
	The Shrinking Space for Human Rights Organisations by Nils Muiznieks Commissioner for Human Rights Council of Europe   In recent years I have noticed a clear trend of backsliding in several European countries in the area of freedom of association, particularly in respect of human rights organisations and defenders.   The growing pressure and increased obstacles can take a variety of forms: legal and administrative restrictions; judicial harassment and sanctions, including criminal prosecution for failure to comply with new restrictive regulations; smear campaigns and orchestrated ostracism of independent groups; and threats, intimidation and even physical violence against their members. In some cases, the climate is so negative that it forces human rights work to the margins or even underground.   Efforts to control, clampdowns on funding and requirements for pejorative self-labelling   Since 2012, more than 60 countries across the globe have either passed or drafted laws restricting the activities of civil society organisations. Restrictive provisions have been enacted in various parts of Europe as well, posing ever-greater obstacles to the work of NGOs operating in the continent.   In Azerbaijan the already highly bureaucratic requirements for NGO registration, which gave the Ministry of Justice near-total discretion in the process, were encumbered by additional administrative barriers to NGOs and their funders enacted in 2013, with increased administrative sanctions for the failure to comply with those regulations.   Despite recent initiatives aimed at simplifying grant registration, the procedures for receipt and use of grants - as well as reporting obligations for NGOs - remain so cumbersome that most independent advocacy NGOs have either scaled down, discontinued their work or moved operations abroad.   The extremely restrictive legislative environment, combined with a broad government crackdown on critical voices, has made Azerbaijan a very difficult country in which to do human rights work.   Since 2012, the authorities in the Russian Federation have progressively made the country less hospitable for human rights defenders. That year the Russian Parliament adopted the “Law on Foreign Agents”, requiring NGOs that receive donations from abroad to register as “foreign agents” (a label which, in the Russian-speaking context, is a synonym for an enemy, a spy or someone who serves foreign hostile interests, as a result of its use as a standard accusation against thousands of individuals during the political repressions of the 1930s and 40s) if they engage in “political activity,” which in the official understanding can encompass any activity by NGOs aimed at influencing public opinion or making proposals for changes to any governmental policies.   The implementation of the Foreign Agent Law has further placed NGOs declared as “foreign agents” in a clear disadvantage vis-à-vis other organisations, and in many cases has led them to curb their activities, self-censor or initiate their own dissolution. Last year, a criminal prosecution was launched against the leader of “Women of Don” - an NGO known for its human rights, humanitarian and charity activities – because of failure to register in the roster of “foreign agents”.   Additionally, legislation was enacted in 2015 permitting the executive branch to declare as ”undesirable” any NGO deemed to imperil the constitutional order, national security and defence.   In Hungary, in a context where members of the ruling coalition have publicly questioned the legitimacy of foreign-funded NGOs to carry out what they consider “political activities”, the government has recently announced plans to amend the law on non-governmental organisations and clarify who is required to make public asset declarations.   Meanwhile, in Poland, some politicians and the state TV broadcaster labeled certain civil society organisations as self-serving, working against Polish interests, or ‘subordinate to the previous ruling system’.   In this context, the government’s latest proposal to establish a National Centre for the Development of Civil Society – a centralised institution to be supervised by the Prime Minister and tasked with coordination as well as overseeing distribution of public funds to NGOs – has raised suspicions that the new structure may be used to funnel funding to government-friendly NGOs while starving critics.   Administrative and judicial harassment, abusive inspections, and mass closures   Mass inspections of NGOs suspected of being “Foreign Agents” by government agencies were under way during my country visit to the Russian Federation in 2013.   These had a distinctly chilling effect on civil society and forced many NGO leaders to devote huge amounts of time and energy towards preparing documents the authorities already had at their disposal.   Inspections, albeit on a smaller scale, also took place in Hungary in 2014 as a result of publication by the Government of a list of those which had received financial support from Norwegian grants. Those NGOs were named ”paid political activists” aiming to ”enforce foreign interests” in Hungary. The government cited national sovereignty and security as justification for the measures targeting civil society groups.   Remarkably, the UN Special Rapporteur on the situation of human rights defenders indicated that Hungarian government officials had acknowledged that the investigation was ”political”, and that the enormous amount of time and resources spent on futile scrutiny of civil society could have been put to better use.   Following the failed attempt of a coup d’état in Turkey in July last year, executive decrees issued under the state of emergency have led to the closure or liquidation of some 1400 associations, including NGOs, under a simplified administrative procedure for the disbanding of such groups and the transfer of their assets to the state treasury.   As I have stressed, closing NGOs without judicial proceedings is unacceptable under international human rights law.   While the state authorities have justified those drastic measures by the alleged links of the organisations concerned with coup plotters and terrorist networks, Amnesty International has pointed out that many of the targeted groups were working on human rights issues such as prevention of torture, women’s rights, humanitarian assistance, providing aid to refugees, and children’s rights.   Not “enemies of the people” but human rights watchdogs   Several countries in the Council of Europe have witnessed smear campaigns orchestrated by the government or actors close to the government against NGOs, particularly human rights and anti-corruption NGOs. In the summer of 2014 the authorities in Azerbaijan began a wide-ranging crackdown against the most prominent human rights defenders and civil activists, many of whom were criminally prosecuted on trumped-up charges and sentenced to prison.   The human rights defenders concerned were openly labeled as “traitors” and “foreign agents”. Whereas several activists were released in 2016, others are still in prison and many criminal cases remain open.   In 2016 the European Court of Human Rights concluded that the actual purpose of the criminal prosecution of Rasul Jafarov – head of the “Human Rights Club” NGO – was to silence and punish him for his activities in the area of human rights.   During my visit to Turkey in 2016, human rights NGOs informed me that following statements at the highest political level challenging their monitoring role, human rights groups were prevented from interviewing locals about security operations in the southeast and visiting affected areas.   Recently, particular targets of negative official rhetoric in Hungary, Poland, and “the former Yugoslav Republic of Macedonia” have been NGOs funded by the Hungarian-American philanthropist George Soros, whose Open Society Foundations were among the main funders for all human rights NGOs in Central and Eastern Europe in the 1990s and continue to operate in some countries in the region today.*   Regrettably, harsh stigmatising of NGOs can be observed in several other European countries as well, including Bulgaria, Romania, Serbia, and Slovakia.   Restrictive measures against civil society groups are often justified with reference to ensuring accountability and transparency. On closer examination, this justification does not hold water, as NGOs must submit regular financial and other reports to the authorities anyway.   Another justification invoked by governments relates to national sovereignty and the need to counteract alleged interference by hostile foreign powers into political decision-making or to promote unrest.   Portraying advocacy NGOs as masked “political parties” is a false justification for restricting their legitimate watchdog function in a democratic society as NGOs do not participate in elections, though they can conduct election monitoring.   Underlying the often-hostile reactions by authorities to the work of human rights organisations as watchdogs is the recognition that a state’s human rights record is an important matter, and criticism in this respect can be particularly sensitive.   It is precisely the activities that are the natural domain of civil society institutions – those relating to human rights, the transparency of government, or possible official misconduct – that in a climate of intimidation and hostility, tend to be designated as “political” and “against state interests”.   However, international human rights law explicitly recognises the right to participate in public affairs. The watchdog role of NGOs involves imparting information and ideas on all matters of public interest and is considered to be similar to the role of the press.   The European Court of Human Rights has pointed out that the use of the term ”political” in respect of activities of NGOs could lead to diverse interpretations and include any goals which relate to the normal functioning of a democratic society.   Council of Europe standards explicitly acknowledge that the contributions of NGOs to society are made through a varied body of activities, ranging from acting as a vehicle for communication between different segments of society and public authorities, to advocacy for changes in law and public policy.   The way forward   We have to be clear: a constructive dialogue on matters of public interest, based on facts, is to the benefit of all. Instead of stigmatising NGOs, governments should facilitate their participation in mechanisms for dialogue and consultations on public policy, with the objective of identifying solutions to society’s needs.   In particular, governments should treat NGOs equally irrespectively of their sources of funding and should always retain the presumption of lawfulness of an NGO’s activities according to the states’ international obligation to create an enabling environment conducive to the work of human rights defenders.   In order to effectively perform their legitimate functions NGOs should be free to solicit and receive funds not only from public bodies in their own state but also from institutional or individual donors, another state or multilateral agencies.   Many human rights and anti-corruption NGOs have no other choice but to look abroad for funding, as government funding for NGOs in some countries is rarely allocated to advocacy NGOs addressing sensitive topics.   Furthermore, states should refrain from imposing burdensome administrative requirements on NGOs and should always limit interference with the right to freedom of association according to the necessity and proportionality requirements. Sanctions can only be applied in exceptional circumstances as a last resort and only in cases of serious misconduct by an NGO.   To cite the European Court of Human Rights, “the way in which national legislation enshrines […] freedom of association and its practical application by the authorities reveal the state of democracy in the country concerned”.   Human rights NGOs and defenders play a key role in the development and maintenance of human rights, democratic governance, and the rule of law, and in promoting awareness about those issues.   Societies need them to become resilient, enrich public debate and pluralism, involve the populace in public life, contribute proposals that can address the major challenges facing the continent today, preserve peace and better the lives of everyone.   Therefore, their freedom to associate must be protected. The space in which they operate must be expanded.   *Full disclosure: I ran an NGO in Latvia that received grants from the Soros network in the 1990s, worked part-time as a programme manager at the Soros Foundation – Latvia, then served as a member of its board in the late 2000’s.   * In this Paper Professor Grzegorz Ekiert analyses the erosion of democracy in Poland and Hungary and explains what steps the EU and member states could take to address the deterioration of democracy in both countries. Ekiert argues that “Hungary and Poland can no longer be considered liberal democracies. In both countries, the authoritarian institutional system has been established, giving largely unrestricted political power to the ruling party. While they are still not dictatorships, the potential for authoritarian rule increases considerably with every new legislation expanding the power of the government.” Grzegorz Ekiert is Laurence A. Tisch Professor of Government and Director of the Minda de Gunzburg Center for European Studies at Harvard University: http://www.socialeurope.eu/book/op-13-deal-poland-hungary Visit the related web page
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