The whistleblower: the impact of the Waserman law on criminal provisions (4/4)

The Waserman Act of 21 March 2022, which transposes a European directive of 23 October 2019 and aims to improve the protection of whistleblowers in France, comes into force from 1^er September 2022. For more information, we refer you to our three previous news posts on this topic.

This fourth and final post is about to the analysis of the consequences of this law in terms of criminal law and procedure, and in particular:

• The criminalization of reprisals from the point of view of discrimination: a new kind of discrimination has been introduced at the article 225-1 of the French Criminal Code. Discrimination based on the status of whistleblower, facilitator, or any person in connection with a whistleblower, whether a natural or legal person, is now punishable of 3 years imprisonment and a fine of €45,000.
• Increased repression against those who attack the whistleblower: the amount of the fine for dilatory or abusive proceedings against a whistleblower, known as the “gagging procedure“, has been increased to €60,000 (compared to €30,000 previously).

In addition, the penalty of posting or disseminating the criminal decision complete the main penalty, which has not been increased, of one year’s imprisonment and a fine of €15,000 for obstructing the transmission of an alert.

Furthermore, when criminal proceedings are initiated against a whistleblower with the aim of hindering his or her reporting, the whistleblower may now ask the criminal court to award him or her, at the expense of the civil party, an advance to cover the costs of the proceedings in order to ensure his or her defense, or to cover his or her subsistence. The judge may order investigative measures before making a decision on the matter. In any event, the judge may decide that the advance granted to the whistleblower is final, even if the whistleblower were to lose the case.

• The justifying fact of the whistleblower is reinforced:
  • The Sapin 2 law already provided for the criminal irresponsibility of the whistleblower for the disclosure of a secret protected by law in Article 122-9 of the Penal Code. The Waserman Act extends this non-accountability to cases where, in order to support his or her report, the whistleblower “withdraws, misappropriates or conceals documents or any other medium containing information of which he or she has lawful knowledge and which he or she reports or discloses under the conditions defined by the law“. The lack of criminal responsibility therefore applies to the author of the alert who has committed offences of theft, breach of trust or concealment, not in order to gain knowledge of the information but to be able to disclose it. It should be noted that the reform extends criminal liability to persons in the whistleblower’s entourage: accomplices, facilitators, natural persons linked to the whistleblower and legal entities controlled by the whistleblower. As these provisions are more favourable, they will be able to act retroactively (Cass. crim., 17 October 2018, n°17-80.485).
  • The establishment of civil irresponsibility in the event of an alert in good faith. Thus, from now on, persons acting in good faith at the origin of the alert will be exempted from the obligation to pay compensation, i.e. those who have “reasonable grounds to believe, when they proceeded to do so, that the alert or the public disclosure of the entirety of this information was necessary to safeguard the interests in question“. The whistleblower will therefore not be required to compensate for the harmful consequences of the disclosure, such as the moral or financial prejudice suffered by the natural or legal person targeted by the alert.

These innovations introduced by the European directive have the effect, on one hand of providing greater protection for whistleblowers and, on the other, of avoiding their isolation.