The Clearstream Affair, OffshoreLeaks, SwissLeaks, Luxleaks, the Panama Papers, the Monstanto Papers, Snowden’s leaks, and now the Paradise Papers and their 13 million leaked files… Over the years, more and more sensational revelations come to light, exposing dishonourable multinationals, politicians and other people in power. These revelations put countries whose fiscal regimes are bending the law in a harsh spotlight. But while the world of politics and media is getting tired of the ‘wait-and-see’ attitude towards fighting tax evasion and fraud, it is less moved by the fate of whistle-blowers who are thrown into disgrace and crushed by judicial machinery that eventually outruns them.
"I had to realise that life was elsewhere"
In the hysteria of politics and the media that these revelations trigger, it’s easy to forget that hidden behind every leak (whether massive or modest) there are everyday men and women. Employees, interns, self-employed individuals or simply witnesses who, in order to leak information, put their reputation, careers and sometimes even their lives at risk. The recent assassination of the Maltese journalist Daphne Caruana Galizia was a brutal reminder of how dangerous whistleblowing can be. Even in Europe, revealing a case or practices that go against the general consensus can cost someone so much as blood.
This analysis is something that Denis Robert, the writer and journalist behind the Clearstream Affair in the early 2000s, can attest to. The story was turned into a film in 2015 (“The Clearstream Affair”, directed by Vincent Garenq, ed.) that, between two filming sessions, responds with bitterness to the vicissitudes of the time. Firstly, he doesn’t consider himself a ‘whistle-blower’, a term he thinks is symptomatic of “the defeat of journalism”. His testimony shows the difficulties endured by what some call “the sentinels”. “63 [legal] procedures have been launched against me over the span of 10 years. I have been the victim of what Canadians call ‘SLAPP suits’,” recounts the journalist, referring to legal procedures whose aim is not necessarily to sentence someone, but rather to frighten them and push them to self-censorship. What’s even worse than the relentless legal actions taken against Denis is the “shameful reactions of journalists who, when they see me nowadays, hug the walls,” he says.
For Denis, this experience has shown that true power does not lie in the ability to disclose information, but rather in that of suppressing it. “I had to resist, stand firmly and especially try not to reply to questions one at a time because they were coming from everywhere. At some point it makes you crazy. I had to realise that life was elsewhere… During those 10 years, I wrote novels, theatre pieces, I went fishing, to the cinema, on vacation… I continued to live.” The journalist, nonetheless, having worked for Actuel and Libération enjoyed a strong reputation: “It was rather difficult to get rid of it. But Clearstream partly managed to do that because they had a lawyer and a service that did the job.”
Denis Robert has a ‘name’ that Raphaël Halet, along with Antoine Deltour, did not have when they revealed the Luxembourg Leaks, the financial scandal that dismantled the financial tax agreements between large multinationals and Luxembourg’s financial administrator. The suffering that the former PricewaterhouseCoopers collaborator felt are not unlike those Denis Robert experienced. “In the beginning, I was suffering from the pressure that my ex-employer put on me and my family. He was trying to destroy us,” he explains in writing. “The indifference shown by the majority of the population” was a second blow. “80 billion euros worth of unpaid taxes per year should cause a revolution on the streets and should be the first topic of conversation,” concludes Halet, who is still waiting on the court of appeal’s verdict, which has just been pushed to the 11th of January 2018. He faces paying a 1,000 euro fee. “What I’m missing is support from mainstream media,” he confesses. Media outlets that, according to him, are in the hands of “a few millionaires” and are the cause of this silence. “Luckily there is popular support via social media outlets, in particular luxleaks.fr.”
Europe, the only way out
For the two men, the only viable protection for whistle-blowers would be a law on the European level, which would concern all the Member States and all sectors, both in private and public organisations. “Foreign journalists could publish stories about France, and French journalists could also intervene in Belgian or German affairs, etc.,” explains Denis Robert. “There is a need for Europe, I would say automatic rather than national, when it comes to these stories,” he continues, explaining that revelations on tax evasion and fiscal fraud are by nature “borderless.”
The journalist suggests several ideas, such as bringing financial and legal support to whistle-blowers. He suggests creating a “committee of wise people,” that would be in charge of protecting and disseminating the informational revealed through the creation of an online portal. The committee would check the information and ensure a kind of “irrefutable label” as well as play an intermediary role between whistle-blowers and the media. For Raphaël Halet, it is essential to put pressure on the European Commission by using social media and local initiatives, in order to attain the creation of a European law.
The European Commission has finally committed to presenting a law in the coming months. The European Parliament has taken the lead by voting on a resolution that will protect whistle-blowers on a European level. Virginie Rozière, the socialist MP behind the drafting of the text, is getting impatient given the inertia of the situation. “If you take Sweden, the protection of whistle-blowers dates back to the 18th century, so it’s nothing new,” she explains from Brussels. For the MP, there are plenty of national examples to draw from. She particularly cites the Netherlands, who even has a “house of whistle-blowers.” “Paradoxically, Luxembourg has a system in place that protects whistle-blowers, but which inspired us less, or rather inspired us in what we shouldn’t be doing,” she adds, explaining that in Luxembourg, a whistle-blower is only protected the moment they speak to the public.
Just as Denis Robert, the MP wishes to cut the SLAPP suits short and reverse the burden of proof: to organisation that is being denounced should be the ones to prove that the alert baseless. She highlights the importance of giving a whistle-blower the chance directly address the press and the public opinion, and ultimately hopes to create a European “committee of wise people”, which has also been brought up by Denis Robert. She equally stresses the importance of establishing a fund to support whistle-blowers financially, psychologically or legally.
“A whistle-blower is not a superhero”
A clear definition as to what makes a whistle-blower is also essential for the MP. In her eyes, it should be as broad as possible in order to cover the most number of cases possible. “What matters is to confirm the alert. It’s the facts revealed that affect the general interest of the public […] The personality of the whistle-blower isn’t an issue.”
And yet, each time a new revelation is unveiled, it is hard to separate the facts from the person behind them. Cinema has also seen this pattern and taken advantage of glorifying whistle-blowers by using Benedict Cumberbatch to play Julian Assange in The Fifth Estate, or Joseph Gordon-Levitt to play Edward Snowden in Snowden. It’s a cathartic construction that Virginie Rozière refuses to accept: “A whistle-blower is not a superhero. They are human beings who are faced with an interior dilemma, stress, doubts, disorientation, not knowing who to speak to and how.” For the MP, the Dutch example of a whistle-blower house is a priority: “This would already allow for a safe place to speak, to ensure confidentiality and advise, guide and be the sympathetic first contact point for the whistle-blower.”
The resolution voted by the European Parliament in October this year contains most of these proposals, with the exception of a European financial fund. The ball is now in the court of the European Commission. However, the institution seems to be playing for time. It committed itself to present a draft law this year, which it has postponed until 2018 due to the complexity of the text. The challenge is whether the text will be examined prior to the 2019 European election campaign, when all the legislative work will be stopped.