Among many recent mileposts, it’s been nine years since Edward Snowden went public, six years since the Panama Papers were released, and almost five years since the Luxembourg Supreme Court overturned the conviction of Antoine Deltour.
As momentous and impactful as these events have been, how much real progress has there been for the cause of whistleblowing and protecting vulnerable witnesses of corruption?
French attorney William Bourdon is in a prime position to know. He co-represented Deltour in the LuxLeaks case, is a member of Snowden’s legal team, and has assisted dozens of whistleblowers, human rights victims and political prisoners over a 40-year career. Among his most recent victories was helping to free bribery whistleblower Jonathan Taylor from extradition proceedings in Monaco this past March.
“Since I’ve been a whistleblower lawyer, it would be wrong not to underline the fact that there has been progress,” Bourdon told WNN. “Things that would be unlikely 20 years ago are today considered common practice. Some whistleblowers feel more protected.”
Bourdon says he is cautiously optimistic about the series of new whistleblower laws enacted in recent years, including the 2019 EU Directive, which led directly to France passing an updated law in February. Bourdon said the new French law establishes a “confidential channel” for people to report misconduct to public authorities and includes penalties for people who retaliate against whistleblowers.
“France is in a good position now. Whistleblowers can be protected and can benefit from immunity,” he said, adding however that the law lacks compensation for retaliation victims and exempts the reporting of professional secrets.
In the field of whistleblower protection, such partial victories are the norm. Though his client Deltour was cleared by a Luxembourg court, Bourdon is dumbfounded by the European Court of Human Rights’ decision to uphold the conviction of fellow LuxLeaks whistleblower Raphaël Halet. Judges in Strasbourg ruled in May 2021 that some whistleblower retaliation is legal and justified. In ruling against Halet, the court said the €1,500 fine against him is a “relatively mild penalty that would not have a real chilling effect” on free speech.
“The Halet ruling is contradictory and not understandable. It is absolutely unfair, a completely foolish decision,” Bourdon said. “There are some conservative judges on the Court, and some hostile forces there.”
‘A Crisis of Democracy’
Bourdon has been going up against hostile forces since the 1980s. He has represented victims of Chilean dictator Augusto Pinochet, the Rwandan genocide, Libyan security services, the Chinese Communist Party, and forced labor operations in Myanmar. He is the former Secretary-General of the International Federation of Human Rights, and founder of several public interest groups including the Platform to Protect Whistleblowers in Africa, whose work on the GuptaLeaks case led to the resignation of South Africa President Jacob Zuma in 2018.
Bourdon says he is encouraged by the changing and broadening landscape of anti-corruption activists and independent journalists. “New NGOs are showing much more professionalization, both nationally and internationally. As a result, whistleblowers are escaping problems because they are shielded by NGOs, and also by social media.”
He said the growth of civil society stands against the growth of oppression. “The question of the protection of whistleblowers is a kind of a metaphor of the situation of the world. Fear can fabricate the worst and the best in people and society. There is a struggle between the new generation of NGOs and civil society, and more and more citizens who are anxious and depressed, and who feel abandoned by the state. Democracy is more awake, but autocracy can appear more attractive to these abandoned citizens.”
“There is a crisis of democracy, which means new opportunities for hostile forces,” Bourdon continued. “People feel less and less confident in politics. This opens doors to new fascists who are very hateful to transparency and accountability. With no democracy, there is no protection of whistleblowers.”
This means new opportunities for citizens to influence the future. “Whistleblowers are the agents of the protection of the long-term interest,” says Bourdon. “They are at the peak of the pyramid of the anger and intolerance of many citizens against abuse of power. They are the main sentinel for the general interest. But the general interest is unprotected. We need the state to have more respect for the general interest.”
Insiders working within companies and public institutions are essential in exposing these increasingly complex crimes. “The illicit financial flows imagined by jurists, accountants and banks are becoming more sophisticated,” Bourdon said. “These engineers of laws and figures continue to invent strategies so they can continue to enrich themselves.”
“Whistleblowers are their worst enemy,” he says. “They are their worst foe.”