19 Abr Whistleblower Law in Spain: pros and cons
With less than half the stipulated time left for organizations to implement the channels established by the new Whistleblower Law, it is worth asking ourselves: can this law really generate a new «culture of information»? Will it help unmask cases of corruption or will it affect innocent people by generating unfounded denunciations and dismissals? In this article we reflect on the positive and negative aspects of the new law that is giving so much to talk about in the business environment.
Last March, the Whistleblower Law –which transposed the previously known Whistleblowing Directive– came into force in Spain. To put it in simple words, this law seeks to protect the identity and anonymity of whistleblowers, the idea being that whoever uncovers corruption will never come to light. In that sense, the Government has affirmed that the main purpose of this law is to promote «culture of information» in citizens as a means of detecting the commission of infringements in the business environment, as well as in political parties, unions and the whole public system.
The main tool that the Law establishes is the implementation of a reporting procedure that protects the identity of the whistleblower and ensures that they are not subject to retaliation. As of today, the use of the whistleblowing channels of organizations has been relatively scarce due, among other reasons, to the absence of a regulatory framework that would guarantee the protection of the whistleblower against possible retaliation by the whistleblower or his or her entourage. To turn over that fact is the new law’s principal objective: the assurance of the protection of whistleblowers who report violations.
The law establishes a very broad concept of «whistleblower», compelling practically all natural and legal persons, both in the public and private sectors, to establish internal information systems that guarantee their protection. Regarding the reporting procedure, the law establishes two different communication channels. On the one hand, an Internal Information System –SII, for its acronym in Spanish– (internal channel) for public and private entities. On the other hand, an external channel that connects the organization with a newly created state authority, linked to the Ministry of Justice: the Independent Authority for the Protection of the Informant (AAI, also for its acronym in Spanish), which will have direct access to the Prosecutor’s Office.
Both channels must guarantee the confidentiality or anonymity of the identity of the informant and of any third party mentioned in the communication, of the actions carried out, as well as the protection of the data included and generated as a result of the report. Each organization’s governing body is required to appoint a System Manager (RSI) who will perform his or her functions independently and autonomously and whose appointment and removal must be communicated, in any case, to the AAI. The possibility of the compliance officer assuming this responsibility is expressly contemplated in the text of the law. However, the law also establishes the possibility of outsourcing the management of the system (including the processing of complaints) to a specialized third party.
The Whistleblower Law presents a tiny but important point that is, still, a matter of debate and uncertainty. The article 9.2.j) establishes the «immediate forwarding of the information to the Public Prosecutor’s Office when the facts could be indicative of a crime». Experts such as Berta Aguinaga argument that this article can be understood as a way to “introduce the requirement that, as soon as the person in charge of the internal information system (which may be the compliance officer) receives, via an internal channel, a communication of a complaint, he/she must immediately forward it to the Public Prosecutor’s Office, without carrying out a minimum internal investigation aimed at verifying the facts and the impact they may have on the organization (not only legal, but also reputational)”. In that sense, if we understand the article in that way, she argues that “this requirement violates the most basic and essential principles that make up the right of defense and, therefore, that govern the criminal process.”
As it generally happens, a positive movement like the implementation of this law, that finally establishes a regulatory framework for those who report certain types of offenses, aimed at the ultimate goal of encouraging citizen collaboration in the fight against economic crime, carries in itself a dubious and negative aspect. The aspect mentioned before is arguably contrary to the most fundamental rights enshrined in the Spanish Constitution and its legal system. Once organizations establish their channels during the three months guaranteed by the law, only time will tell if those rights are adequately protected or not. Our conviction is to make it that way.