A few days ago, Congress approved the new Law regulating the protection of people who report violations of regulations and the fight against corruption, finally completing its parliamentary process. The deadline for the transposition of the European Directive 2019/1937 arrives quite late since the term expired in December 2021.
The regulation has not obtained the approval of organizations that work in the defense of whistleblowers whose role has been fundamental in uncovering corruption schemes in public administrations, among them, Whistleblowing International Network (WIN), Xnet, Government Accountability Project, The Signals and Blueprint for Free Speech. But in the business bosoms, the norm in general has caused concern, since with this regulation, they can originate irreparable reputation problems.
According to Felipe García, a lawyer from the Círculo Legal Madrid firm, when a whistleblower’s case reaches the media, “The company faces two sentences: that of the judge and that of the company”. García recalls that the new law urges companies to set up an internal complaint channel and the State to create a Independent Whistleblower Protection Authority, but he can bypass these avenues and make a public disclosure directly.
“At the moment the complaint is launched, the judgment of public opinion is lost, even if the contrary is later proven”, indicates García, who considers that the regulations are based on the assumption that all complaints will be made in good faith. “What will happen when this employee’s motivation is revenge against his boss?asks the lawyer, who indicates that “a worker could disclose sensitive corporate data claiming it is related to a breach. Even if it was proven to be false, hethe image of the company would be very damaged And if the leak of this information constitutes a trade secret, the disclosure can have immense financial damage to the organization.”
In search of legal balance
Business secrets have strong protection by our legal system, however, the regulation of protection of whistleblowers, it is orphaned to offer this protection.
Those who reveal business secrets may be the subject of a complaint or lawsuit, in addition to being sued in civil proceedings for damages, but, under the new protection standard for whistleblowers, it is possible that whistleblowers faith, take refuge in it to prevent condemnatory sentences from falling on them. García, explains that “in a company, illegal secrets, that is, those that are part of a set of irregular facts, will be exempt from protection, but it will not always be easy to determine if a secret is legal or not.”
The lawyer from the Circulo Legal Madrid firm insists that “the law is very open to interpretations and may not bear the expected results, and all after waiting many years for this long-awaited regulation.” García admits that “it is necessary to find a balance between the right of whistleblowers to be protected and that of the company, so that the latter does not see its image tarnished by perverse maneuvers of whistleblowers in bad faith, who simply seek revenge, and where, in addition , its secrets, can be exposed.
