Whistleblowers: penalties are coming, and not just for employers

Until 17 December 2021. Poland had a deadline to implement Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of whistleblowers. For now, there is only a draft law, commonly referred to as the Law on the Protection of Whistleblowers.

In this article, I will discuss the draft substantive criminal provisions found in the whistleblower bill. The substantive provisions are, in the simplest terms, provisions covering a catalogue of criminal acts and the penalties envisaged by the legislator for committing such acts – i.e. new offences.

The draft bill provides for the introduction of as many as 5 new offences into the legal system, i.e:

• Article 56 Whoever obstructs a report, shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of
• liberty for up to 3 years. Article 57 Whoever, contrary to the provisions of Article 10, retaliates against a person who has made a report or a public disclosure, shall be subject to a fine, the penalty of restriction of liberty or the
• penalty
• of deprivation of
• liberty for up to 3 years. Article 58 Whoever, contrary to the provisions of Article 30 or Article 43, violates the obligation to keep confidential the identity of a person who has made a report, shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 3 years
• .

• Article 59. Whoever has made a report or public disclosure of false information shall be subject to a fine, the penalty of restriction of liberty or deprivation of liberty for up to 3 years.
• Article 60. Whoever, contrary to the provisions of this Act, has not established an internal procedure for reporting infringements of the law and taking follow-up action ,or the procedure he has established violates Article 29,paragraph 1, shall be subject to a fine, the penalty of restriction of liberty or deprivation of liberty
• for up to 3 years.

At first glance, it is apparent that the criminal provisions in the bill are rather “laconic”, which is not a desirable feature in the case of criminal regulations. Experience suggests that the use of such vague wording as “obstruct” as an element of a criminal offence may result in a very wide scope of interpretation and, consequently, a great deal of behaviour may be qualified as “obstructing notification” and subject to punishment.

However, the bill under discussion is not unique in practising this type of solution. In the Criminal Code, we often encounter expressions such as “unreliable document” or “social harmfulness of the act”, which gives a very wide field of interpretation. Today, it is difficult to say what the legislator means by ‘obstructing’ a notification, and the explanatory memorandum to the bill is silent on the subject. Usually in such cases, lawyers, i.e. both prosecutors, judges and lawyers, will have to work out their own interpretative paths – before a clear line of jurisprudence emerges.

At this point, we can only presume what acts the legislator understands by the term “obstruction of notification”. It can be both persuasion not to report but equally well threats of dismissal. The same applies to the concept of ‘retaliation’. We do not know whether retaliation would be only dismissal or also other behaviour such as, for example, refusal to grant leave at a given time. It must be acknowledged that the ‘retaliation’ situations referred to are very subjective in their assessment, so it is puzzling how these issues will play out in practice.

Another issue worth analysing is the penalties that are threatened for committing the offences in question. For each of the offences, the legislator has provided for a fine, a restriction of liberty or imprisonment of up to three years. At the current stage, the legislator has not provided for a qualified type (i.e. an aggravation of punishment) of any of the offences, but neither has it provided for the possibility to mitigate the penalties provided for for offences due to specific grounds, e.g. the good faith of the whistleblower.

Usually, at the stage of drafting a bill, the explanatory memorandum to the bill contains many indications as to how future provisions will be interpreted. To a certain extent, this is also the case with this Act, with the exception, however, of the criminal provisions. In fact, the explanatory memorandum to the bill does not mention anything about very important issues from the perspective of the future defence, e.g.: will unintentional offences also be criminalised?

Interestingly, the same sanction threatens both the whistleblower who made the report or disclosed untrue information to the public and those who obstructed the report. After reading the legislation, it is this article on the criminal liability of the whistleblower that we can consider the most controversial. There is no doubt that liability for violations of the Act should be imposed on whistleblowers as well as on employers or managers, and the protection of whistleblowers should not be unconditional. However, it would be reasonable to introduce provisions that would mitigate the criminal liability of whistleblowers who, for example, acted in good faith. The provision itself, in its severity, could be a big barrier to whistleblowing and the formation of a culture of transparency in Polish companies.

At this stage, entrepreneurs should be particularly interested in the proposed Article 60 of the Act, which penalises the failure to establish internal procedures for reporting and following up on violations of the law. By 17 December 2021, Poland was to implement whistleblower provisions for entrepreneurs employing more than 250 people and for public finance sector entities. This means that large entrepreneurs (with 250 or more employees) and public administration entities, after a 14-day vacatio legis from the publication of the law , will be criminally liable for up to three years’ imprisonment for failing to have internal procedures in place in their companies to enable secure, confidential or anonymous whistleblowing.

The draft criminal provisions in the Bill still need some work, we can only hope that by the time the Bill is enacted the deficiencies in the Bill will have been addressed. This may happen as the draft has gone out to public consultation.