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Are persons reporting false information eligible for protection?

by Aneta Siwek

7 October 2022

Article 11 of the Whistleblower Bill says that no acts of retaliation or attempts or threats of such acts may be taken against a whistleblower.

Are all whistleblowers, including those reporting false information, subject to protection?

This question must be answered in the negative. Crucial in this regard are the regulations laid down in Directive (EU) of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law, according to which whistleblowers qualify for protection against retaliation provided that:

they had reasonable grounds to believe that the information on breaches reported was true at the time of reporting and that such information fell within the scope of this Directive; and
they reported or publicly disclosed information in accordance with the provisions of the Directive [1a].

To enjoy protection under this Directive, reporting persons should have reasonable grounds to believe, in light of the circumstances and the information available to them at the time of reporting, that the matters reported by them are true. It seems reasonable to assume that whistleblower's subjective assessment is crucial here, provided that it is based on facts giving the whistleblower reasonable grounds to believe that the reported information is true.

At the same time, persons reporting or publicly disclosing information should have reasonable grounds to believe that their report is covered by the laws on the protection of whistleblowers. Under the Whistleblower Bill [2] reports may concern, among others, identified breaches with respect to:

public procurement, financial services, products and markets,
prevention of money laundering and terrorist financing,
product safety and compliance,
transport safety,
protection of the environment, radiation protection and nuclear safety,
food and feed safety, animal health and welfare,
public health,
consumer protection,
protection of privacy and personal data,
security of network and information systems,
financial interests of the State Treasury of the Republic of Poland, of local government units and of the EU, the EU internal market, including public law competition and state aid rules as well as corporate taxation [2a].

These requirements are an essential safeguard against malicious and frivolous or abusive reports.

Who does not qualify for protection?

The following persons will be not entitled to benefit from the protection granted by this Directive:

persons who, at the time of the reporting, deliberately and knowingly reported wrong or misleading information,
persons who deliberately reported incomplete and inaccurate information in order to mislead competent authorities receiving information on breaches.

Are the motives of the whistleblowers relevant?

The motives of the reporting persons in reporting should be irrelevant in deciding whether they should receive protection. However, it is important that the requirements specified above are met.

Do persons only raising reasonable concerns or suspicion qualify for protection?

Noteworthy in this context, the protection guaranteed by the Whistleblower Bill should cover also persons who do not provide positive evidence but raise reasonable concerns or suspicions, provided that they meet all the conditions specified above.

If you have any questions or doubts about whistleblowers’ protection, please contact our experts.

Legal basis:

[1] Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law

[1a] Article 6 (1)

[2] Whistleblower Bill

[2a] Article 3 (1)

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Aneta Siwek

Attorney at law (Poland)

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