The Courage of Truth and Why Whistleblower Protection is Urgently Needed in EU Law

Prof. Dr. Dietmar Köster, Member of the European Parliament, Group of the Progressive Alliance of Socialists and Democrats in the European Parliament

Dr Sonja Grabowsky, Research Fellow

In one of his last lectures, given in 1983 shortly before his death, the French scholar Michel Foucault noted: ‘There is no democracy without true discourse, for without true discourse it would perish.’ 1 Is this statement about ‘true discourse’ still relevant today? Would it sound equally antiquated if, instead, we employed the familiar term ‘whistleblowing’? This would at least have the advantage of showing that this currently much-discussed phenomenon is not new but has a long tradition. It is worth examining this tradition in order to gain a better understanding of ‘whistleblowing’ and to analyse the current state of affairs.

In the early 1980s, Foucault considered the approaches taken to freedom of speech and freedom of opinion since Antiquity. His leitmotif was the Greek philosophical tradition of ‘parrhesia’. This term is ambiguous, but generally means ‘free spokenness’ or ‘free speech’.2 Foucault described parrhesia as ‘the courage of truth’3 and ‘speaking the truth’. 4 For him, it meant not only speaking (the truth), but also ‘the obligation to speak the truth.’ 5 This always involves consequences: a person who speaks the truth runs a personal risk and put him or herself in danger. 6 The clearest indication for the truth of the parrhesia consists in the ‘fact that a speaker says something dangerous – something other than what the majority believes […].’7

To behave in accordance with parrhesia means assuming responsibility for oneself and others as a moral duty. It is to aspire to change others and to trigger a critical attitude in them. It thus implies the possibility of changing the world as it is. 8 And it is directed towards a world compatible with human dignity.

According to Foucault, parrhesia is of great importance for the social and political spheres: if it is absent, freedom may be lost and ‘people, citizens and all others are at the mercy of the madness of the powerful.’ 9 For Foucault, this applies also, and indeed especially, to democracy and thus to us today. In tracing the continuity of this tradition since Antiquity, Foucault is concerned with speaking the truth up to the present day and our democratic constitution. For Foucault, democracy and parrhesia belong together, the one does not exist without the other: ‘parrhesia has a deep connection with democracy.’ 10 This connection is ‘a kind of circularity’ […]. ‘For democracy to be possible, there must be parrhesia.’ 11 It is ‘one of the characteristic features of democracy […]. However, this means that democracy is necessary if parrhesia is to be possible. Democracy needs parrhesia, and parrhesia needs democracy.’12

Let us now examine the present: to what extent are the philosophers of Antiquity, are Foucault’s findings relevant to us today? What is our present relationship to the ‘modern truth-tellers’, to whistleblowers? How do we treat them? And what does this tell us about the state of our democracy?

Just as the term parrhesia has no single meaning, there is no binding interpretation or translation, or even a legal definition, of whistleblowing. Whistleblowing in English means ‘sounding the alarm’ or ‘disclosing information about’ (some abuse). According to the Council of Europe’s definition, ‘whistleblowers’ are ‘concerned individuals who sound an alarm in order to stop wrongdoings that place fellow human beings at risk – as their actions provide an opportunity to strengthen accountability and bolster the fight against corruption and mismanagement, both in the public and private sectors.’ 13 Whistleblowers act not out of personal interest but to protect the community and to prevent harm to society. Because their actions are met with mistrust and they are often viewed as traitors, attempts are made to prosecute them. They therefore take a high personal risk by jeopardising their professional careers or even endangering their livelihoods. Due to a lack of legal protection, they often remain anonymous and publish their findings through third parties such as journalists. If they disclose their findings themselves, or if they are exposed, they can only escape criminal prosecution by fleeing justice. Well-known cases of whistleblowing that have come to public attention recently are the so-called LuxLeaks, Panama Papers, doping revelations, etc. These examples show that, while whistleblowing is currently possible, it is done at great personal cost to whistleblowers. Not only, as one might think, in authoritarian states, but precisely in democracies.

Not least thanks to recent cases of ‘whistleblowing’, public awareness and the appreciation of its value for democracy and human rights have increased. It is becoming increasingly evident that the legal protection of whistleblowers is urgently necessary. European and international organisations, such as the Council of Europe14 and the OECD15 , and even the G2016, have long been calling for this. In the European Parliament, MEPs have now also recognised the need for whistleblower protection at European level. As early as 2013, the EU Parliament had called on the Commission to submit a proposal for legislation to afford better protection for whistleblowers before the end of 2013, but nothing was done.17 So far, the EU has provided only sectoral protection for whistleblowers. In these regulations and directives, whistleblowing is protected as a necessary means to secure the objectives of the legislation. In April 2016, the Social Democrats were finally able, after many rounds of negotiations, to exclude whistleblowers from the ‘Trade Secrets’ Directive, which was adopted in the April part-session, in order to ensure more effective protection at EU level for the first time. However, this does not go far enough for the S&D Group: whistleblowers should be comprehensively protected by a separate regulation.

Even in our European democracies, whistleblowers are still not sufficiently protected. If we again turn to Foucault, we encounter a paradox that needs to be resolved: whistleblowing or speaking the truth is specifically endangered by democracy: ‘[B]ut the death of true discourse, the possibility of its death or of its reduction to silence is inscribed in democracy… No democracy without true discourse, but democracy threatens the very existence of true discourse.’ 18 We must decisively counter this threat, which is why uniform European legislation for whistleblowers is urgently needed. It is essential in order to strengthen our civil society. If we wish to preserve democracy, we must protect whistleblowers, because, according to Foucault: ‘If democracy can be governed, it is because there is a true discourse.’19

Bibliography

Duden (1984): Fremdwörterbuch (dictionary of foreign words)

Foucault, Michel: Discourse and Truth. Berkeley Lectures 1983. Edited by Joseph Pearson.

Foucault, Michel: The Government of Self and Others. Lectures at the Collège de France 1982/83.

Foucault, Michel: The Courage of Truth, ed. Graham Burchell, The Government of Self and Others II. Lectures at the Collège de France 1983/84.

1 Foucault, The Government of Self and Others, 2010, pp. , 183-184

2 N/A (applies only to German text)

3 The title of the 1983 Berkeley lectures.

4 Foucault, Michel (page numbers apply only to the German text).

5 Foucault, Michel. Italics by the authors.

6 Foucault, Michel.

7 Foucault, Michel.

8 N/A (applies only to German text)

9 Foucault, Michel.

10 Foucault, Michel.

11 Foucault, Michel. Italics by authors.

12 Foucault, Michel. Italics by authors.

13 http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17851&lang=en

14 https://wcd.coe.int/ViewDoc.jsp?p=&Ref=CM/Rec(2014)7&Language=lanEnglish&Ver=original&Site=CM&BackColorInternet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383&direct=true.

15 http://www.oecd.org/gov/ethics/whistleblower-protection.htm.

16 https://webcache.googleusercontent.com/search?q=cache:4S-nGBgwrtUJ:https://www.oecd.org/g20/topics/anti-corruption/48972967.pdf+&cd=1&hl=fr&ct=clnk&gl=bg.

17 https://www.tagesschau.de/ausland/luxleaks-whistleblower-brief-101.html.

18 Foucault, Michel.

19 Foucault, Michel.

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