Rookie Mistake: Danish Supreme Court Fumbles First-Ever Whistleblower Case

Bitten Vivi Jensen

Denmark made history last June when it became Europe’s first country to pass a whistleblower protection law to comply with new EU rules. Media outlets, law firms and anti-corruption advocates offered their praise.

The compliments came too soon. Today, in the first-ever whistleblower case to reach the Danish Supreme Court, judges ruled against a city employee who exposed the improper withholding of retirement and disability benefits.

Bitten Vivi Jensen was working in the rehabilitation office in the Frederiksberg municipality of Copenhagen when she learned officials were trying to save money by denying payments to needy citizens. She raised her concerns to managers but was ignored and dismissed from her job in 2016.

Jensen then gave 90 case files to prominent Danish journalist Ulrik Dahlin of the newspaper Information, which published a lengthy exposé about Frederiksberg’s failings in 2017. The municipality’s response was to file criminal charges against Jensen for confidentiality violations. She was fined 5,000 Danish kroner (about US$770) and given a suspended sentence of 10 days in jail.

After losing her case in the District and High courts, she appealed to the Supreme Court. Her attorney, Mads Pramming of the Copenhagen firm Ehmer Pramming, argued Jensen should be protected under Denmark’s new whistleblower law, which took effect last Dec. 17. Even though the case originated several years earlier, the court agreed to use the case as an opportunity to interpret the new law.

In its ruling, the court homed in on one highly subjective provision in the law that WNN reported last September could pose problems for whistleblowers: they must show that making a disclosure was “necessary.” “The law does explain who will make this determination or how, placing employees at a further disadvantage,” WNN reported.

The court utilized this very provision in its rationale to rule against Jensen. “It was not necessary to disclose highly sensitive personal data in order to shed light on how the municipality was handling cases,” judges wrote. “Instead, [she] could have expressed her views in general terms or given examples of how cases were handled.”

On the contrary, Pramming argued to court, Jensen needed to give all of the information to Dahlin so the journalist could understand the totality of the citizen mistreatment and write a thorough article. “This was a systemic problem,” Pramming told WNN. “In order to get the story out, she had to reveal all of the cases.”

Further, Pramming said Jensen and Dahlin agreed that no names or any identifying information from the 89 case files ever would become public. “At no time was there a risk of any [confidential] information getting out to the public,” Pramming said. “And no one other than the journalist saw the files.” This, he said, punctures the Supreme Court’s concerns about violating citizen confidentiality.

Though ruling against Jensen and agreeing she was rightly prosecuted, the court found Jensen to be sincere, credible and effective. “She disclosed the files in good faith and not for personal reasons, and there was a factual basis for the criticism. She was thus acting in the legitimate public interest,” judges wrote. They noted Dahlin’s article “contributed to a growing public debate about the municipalities’ handling of cases,” and that it led to legislative reforms.

Still, in another apparent contradiction, judges wrote that “the interest in protecting confidential information outweighs the interest in freedom of expression.”

“Of course we are quite disappointed, but we expected this in a way,” said Pramming, who also chairs the whistleblower advice group Veron. “If the test is ‘what is necessary’ and that people could have done things differently, these will be very difficult for whistleblowers to meet.”

Jensen, now 69 and retired, is working as volunteer to help some of the people who she discovered were denied benefits.

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