Whistleblower one Day, Pariah forever?
Whistleblower one Day, Pariah forever?
"I used to work for the government, I now work for the citizens"
Julian Assange, symbolic editor of the site WikiLeaks which he founded in 2006, has been a refugee in the Embassy of Ecuador in London for seven and a half years as of June 2012. He feared an extradition to Sweden and then most probably to the United States of America because of the procedures opened against him in these countries. However, in February 2016, five experts from the United Nations pronounced a positive decision concluding that Assange has been a real victim of an arbitrary decision since June 2012. As a consequence, they claimed that the refugee should immediately be released and receive compensations. On May 19th,2017 Sweden announced that they were abandoning legal proceedings relating to rape crimesagainst the Australian citizen. This was the first important victory in his file. Furthermore, in December 2017, Assange obtained the Ecuadorian nationality which could have predicted exiting the Embassy safely with a diplomatic status as per a request made by the Ecuadorian Foreign Minister, but it was turned down by the British governement. Lenin Moreno, once elected President of Ecuador, declared that the Embassy of Ecuador in London would continue to offer the asylum to Assange however things got complicated until we all watched Julian Assange's publicized outing on April 12, 2019 supervised and carried by British police officers. The Australian journalist was directly driven to Belmarsh, a high-security prison located in the London suburbs, where he still is a prisoner today although the British justice on one side refused his extradition to the United States of America on January 4, 2021 and on the other side denied bail for him two days later.
Certain pieces of information revealed by WikiLeakshad been passed on by a young military analyst of the US army, Bradley Manning. He has since been judged in the United States of America for betrayal and was sentenced in 2010 to thirty-five years in jail as he had transmitted classified military documents, namely the video of a ‘blunder’ during an air raid in Bagdad on July 12th,2007 thus witnessing the shocking execution of civilians. Even if the Obama Administration decided in January 2017 to commute the sentence of Bradley Manning (who has become Chelsea Manning), leading to her freedom on May 17th, 2017 one was allowed to wonder if Manning was in security since she was set free. The whistleblower was imprisoned again because she refused to testify in a Grand Jury against Assange and has been granted a provisional release after attempting suicide in March 2020.
These two cases have hit the headlines as much as the other emblematic story of Edward Snowden, an American citizen who has been living in exile in Moscow since summer of 2013. He had made public confidential pieces of information relating namely to mass surveillance programs implemented by the US National Security Agency (NSA). These three individual cases have made everyone become aware that the protection of whistleblowers is a huge stake for our democracies.
Admittedly, all the whistleblowers are not imprisoned, in exile, locked up or simply have disappeared, nor on the run abroad. However one has to acknowledge and notice that the large majority of them have paid a high price for their courage, their honesty and their integrity. This is precisely where the ambiguity and the absurdity of their individual situation is found.
Punished. Why? Simply because they dared to tell the truth.
Punished. Why? Simply because they revealed information that had up until now been hidden from everyone.
Punished. Why? Simply for being women and men who exposed the very real danger relating to the interest of the vast majority of citizens.
As Things stand at present
For the past ten years, international financial scandals have been making news. Of course, one will definitely remember that these publicly exposed scandals have allowed and still allow our States to recover amounts that they would never have discovered without the help of citizens who have acted in honesty towards the general interest.
Everywhere in the world, pressures against the ones who dare stand up against the finance industry are extremely violent. Many citizens have been informed of the international tax evasion scandal implemented by the bank Julius Baer in the Cayman Islands and made public by Rudolf Elmer. Many more people remember the Swiss Leaks - HSBC scandal, the LuxLeaks, the Panama Papers and more recently the Football Leaks, the Malta Files and the Paradise Papers. None of these international scandals would have been published without the courage and the extraordinary resistance of the whistleblowers. Some of them have been prosecuted or even sometimes imprisoned whilst being considered as traitors by the financial industry. Others have chosen to stay anonymous, which protects them in terms of security, judicial decisions or even retaliation.
In fields as different as health care, pharmaceutical laboratories, food industry, energy, administration, disgraceful cases have been disclosed thanks to women and men who have refused to support illegal businesses, wrongdoings or actions and which were against their personal and professional ethics. The multiplicity of the scandals proves the usefulness of their approach for the general interest and the democracy.
Nowadays, one does not have to prove that whistleblowing is one of the most efficient ways to expose crimes and corruption. The numerous scandals that have been disclosed for the past ten years have led to the vote of new laws everywhere in the world. Beyond their necessity to exist, do the laws efficiently protect the citizens who have allowed information of general interest to be known by all?
Whistleblowers never change their version of the facts when they face courts, their administrations and journalists. This is why one tries to break them down with discredit so as to avoid that the scandals be multiplied whereas the level of corruption has never been as endemic. On a yearly basis, the NGO Transparency International publishes an index of perception of the corruption. One can then learn in their report published in January 2017 that in 2016, France ranked 23rdout of 180 countries analyzed.
Whereas the published figures are alarming with breaches of default to integrity in 2014, the French ‘Sapin II’ law, which was voted on December 9th, 2016 gives the possibility to a company that committed fraud to negotiate a fine without legal recognition of its guilt, instead of being subjected to a long judiciary procedure. What about the integrity of our economical, political and legal ruling class regarding the fundamental question of the protection of citizens revealing the wrongdoings of ‘cheater companies’? Wouldn’t it simply be a matter of buying the silence and the peace for the company to continue its frauds and / or wrongdoings? On the contrary, certain people are very satisfied with what the law provides for because the company that commits fraud must recognize the facts and it is planned that the documents relating to the settlements then achieved be published. This would constitute an acknowledged advance in terms of criminal justice of our country. Furthermore, associations such as Anticor and Transparency International will be able to associate in a court action with the Public Prosecutor in cases of corruption of foreign civil servants. The ‘Sapin II’ law created the breach in influence peddling by a foreign civil servant.
In November 2015, during a colloquium organised by Technologia, a company specialised in the preventive measures of professional risks, I learnt that the role of whistleblowing had been granted to the CHSCT (French Committee of Hygiene, Security and Working Conditions) by a law passed on April 16th, 2013 “relating to the independence of the expertise as far as health and environment are concerned and to the protection of whistleblowers”. It is called the ‘Blandin law’. From now on, the elected representative of the CHSCT can refer to the Prefect of Police if there is an issue regarding the cogency of the alert or the action concerning the alert. It seems that things are moving on then.
With several graphs projected during this conference, we heard that 42% of the employees in France stated abnormal behaviours and insisted on the non-respect of security or regulation. It was even more serious to learn that 26% of the employees have been encouraged by their managers or their colleagues to infringe the regulations and 36% of the employees admitted to have faced wrongdoings within the scope of work. At the end of 2015, 54% of the employees polled for this survey testified on the non-existence of a dedicated whistleblowing procedure in their company.
What is a Whistleblower?
This is how the Courage Foundation, the association which defends Chelsea Manning and Edward Snowden among others, defines a citizen who stands up against opacity.
Before the case of the American Edward Snowden was made public in 2013, I had never heard the French equivalent of the word ‘whistleblower’. I had always declared that I was the witness of malfunctions, a victim of retaliation, a plaintiff and a woman who spoke the truth. For French speaking people, the literal translation of the word ‘whistleblower’, is a person who ‘blows into a whistle’, exactly like the referee of a football game would blow a player’s fault.
When he discovers a wrongdoing or ‘something wrong’, the whistleblower ignores that he indeed is a whistleblower. He or she sometimes even ignores that those discoveries are potentially illegal, dishonest, illicit or even sometimes legal. He or she may even never have heard this word ‘whistleblower’. He or she will delve into files and will find the answers to their questions to understand and satisfy their curiosity.
By definition, it is a matter of a person, someone who is honest, meticulous, professional and upright and whose goal is to protect the general interest. He represents the citizen watch for which an ethical exigence of the fight for truth against injustice, against lies after many sacrifices, not to mention his life. The values of the whistleblower distinguish him from being an informant or a witness, a repentant, a traitor or a criminal turned informant who discloses after being trapped.
It is important to understand that these women and men have never wished to denounce anybody, they have never mentioned individual situations, have under no circumstances been willing to settle any scores. They have each defended, at their level, the general interest of whichever branches of the industry they were working for. One is speaking here about reporting threats that the whistleblower citizen estimates to be a danger for the common good. This is the opposite of denouncement that is only a settling of scores of a person who acts for a private interest which is lowness. With honesty, a whistleblower will communicate confidential pieces of information that have so far been hidden from all.
There is no international definition of the ethical alert but the NGOs agree to claim that it is about creating an “alert in the general interest”. The Council of Europe has given the word ‘whistleblower’ quite a large definition in their recommendation on April 30th, 2014 to the Council of Ministers to the member States: a “whistleblower means any person who reports or discloses information on a threat or harm to the public interest in the context of their work-based relationship, whether it be in the public or private sector”. A whistleblower is thus a person who discloses malfunctions or wrongdoings, he will break a secret, something that was hidden in each scandal. It turns out that some people knew but they were kept silent fearing retaliation. It could also happen that some people have talked but they have not been listened to by justice and courts on time (case of witnesses in the Société Générale vs. Jérôme Kerviel affair in France), because of a lack of protection and an independent authority dedicated to the treatment of the alert.
Different Conceptions of the Alert
In the Revue des droits de l’homme, Jean-Philippe Foegle has published a comparison survey about the phenomenon of whistleblowing between France and the United States of America. He has developed the idea that “the first feature found stands with the existence of two conceptions of the whistleblower. The first conception that prevails consists in turning the whistleblower into a ‘legal denouncer or an informer’.
He is then recognized as legitimate in that he denounces facts that the public authorities intend to repress, or risks to which they wish to put an end. The second conception of the whistleblower is funded on a broad acceptance of the right to freedom of speech. Each citizen can enjoy the name of ‘whistleblower’ and can then potentially, in its most variant and radical form, be approached to be similar to civil disobedience. The uncertainty on the same nature of the idea doubles the uncertainty concerning the protections that are granted to them which appear and for different reasons in France and in the United States of America, to be widely inactive. A whistleblower is found to be placed, in every case, at the centre of a permanent dialogue between general interest and secret”.
In the UBS file, can one consider that it is a matter that our States intend to reprimand and a matter of the freedom of speech? This would thus eventually decide in my favour because the French State communicated at the highest level, namely by the letters sent from the Ministry of Finances in succession one after the other for the past ten years - to make believe that all the means are being implemented to fight tax evasion.
The Whistleblower is latent in each Citizen
A whistleblower is not necessarily an employee of a company. He can also be a sub-contractor, a client, a supplier, a service user, a civil servant, a journalist, a trade unionist, an elected employee. Each of us can be a whistleblower, whether one discloses international or local scandals, as long as the common good is concerned, it is everyone’s business.
Why have whistleblowers decided to talk? Could the whistleblower be a citizen like any other? The documentary entitled: “10 % What makes a hero" by Yoav Shamir is taking a keen interest in the ones who, one day, at the risk of their lives, have made decisions in the interest of another person – or many other persons. Even if the examples are very different, each of the citizens interviewed estimate to have done what had to be done, exactly as if they had helped an elderly person to go across the street or carried the heavy luggage of someone who is physically fragile. Under no circumstances do these citizens consider themselves as heroes. All the whistleblowers say the same thing: they have acted with their conscience. Ethics is their first value.
They arrive from the core of silence and will turn into real resistance figures facing the opacity of the pieces of information which they will discover. The ones one calls as ‘insiders’ know their jobs better than anyone else; they are the ones who are able to detect serious malfunctions from the inside. Considering that they have discovered information potentially threatening the general interest, they will transfer these elements unselfishly to their hierarchy or to the knowledge of media, associations or NGOs. Therefore there is not a ‘heroic’ gene as Yoav Shamir was looking for. Everyone stemmed from the civil society, whatever his skin colour, his nationality, his age, his religion, his social status, his handicap, can be a resistant standing up in front of any kind of danger.
La Déclaration des droits de l’homme et du Citoyen is described in the Robert & Collins dictionary as such: “Written in 1789, this document is of great cultural and historical significance in France, reflecting as it does the Republican ideals upon which modern France is founded. Drawing on philosophical ideas that developed during the Enlightenment, it declares the natural and inalienable right for all people to freedom, ownership of property and equality before the law, as well as the universal right of all nations to sovereignty and the separation of powers. It has always been used as a basis for the French Constitution”.
Deliver the alert to transmit it because it is the foundation of the article 11 of the 1789 Declaration of Human Rights. Free communication of thoughts and opinion is one of the most precious human rights: Each citizen can thus speak, write, print freely except if to reply to the abuse of this freedom in the cases determined by the law. Everything is written in this article: the sacred right to inform and to transmit the information is our republican foundation. In other words, it is informing about a situation or facts which are serious enough to have to be transmitted. In the TedxClermont talk I gave in 2017, I explained that blowing the whistle when in a theater is informing of a fire danger thanks to the alarm signal. It could also be an accident but it could also be an attack. One thus sees, by this simple example, that blowing the whistle is not specified to employees and that the alarm is not only pulled by employees. However in this example, the ones who pull the alarm signal are exposed to sanctions if their gesture is not linked to a situation that justifies it. Everybody can read it in trains. Everything is said by this simple example: each of us has the right to inform. When the situation or the facts reveal seriousness, urgency and interest for the society, everyone can pull the alarm signal but be careful, abuses are penalized.
Who can one turn to when one discovers malfunctions or wrongdoings? A majority of employees being absolutely confident in their employer, they naturally turn to them. When they blow the whistle, they imagine that they will find confidence within the members of the management, they believe that their different bosses are going to support them because the values conveyed by advertising campaigns of the company and relayed by internal ‘Rule Books’ value transparency, confidence, know-how, the world ranking, restricting procedures or even the strict control of the work of each of the staff members, whatever their grades or their functions. All these tools seem to give each employee the picture of a transparent working environment beyond reproach. Unfortunately, all our stories prove the opposite, trusting the hierarchies means throwing oneself into the lion’s jaws. The isolation which we have suffered after asking questions, after putting light on information that was hidden, has for the only goal to make us lose our credibility. The culture of the fear has also been developed so that nobody joins our ‘fight’.
Being sued by my ex-employer UBS because I disclosed a certain number of wrongdoings in terms of tax evasion organized by the oldest wealth manager in the world, I had to go to the 17thCriminal Courtof the Tribunal de Grande Instance (TGI), the court in Paris. Indeed, in my first book La Femme qui en savait vraiment trop (Stéphanie Gibaud, La Femme qui en savait vraiment trop, Éditions Le Cherche Midi, Paris, 2014), I give details of my career at UBS, of how I have blown the whistle internally, the tax evasion case for which UBS has been under investigation for several years and the legal procedures I have suffered until I was made redundant in 2012.
On February 2nd, 2017 at court, seated in the first row on the bench of the accused persons, I realized the impact of the pressures brought by the management on the twenty-or-so UBS executives who were present in the court room. The attitude of my ex-colleagues is the materialization of the Milgram’s syndrome, this terrifying experience where a ‘guinea pig’ is being tested to ask questions to someone who is an actor paid to answer to the questions. The experience consists of asking the guinea pig to send an electrical discharge to the other person each time the answer given is wrong. The electrical discharges are graduated and increase to each new wrong answer. The actor who plays giving wrong answers to questions, screams louder and louder each time he receives an electrical discharge until he mimics his own death having screamed after receiving a potentially fatal discharge from the guinea pig. It is staggering to notice that men and women, in their vast majority, obey the order they receive, until the end of the exercise. As the instruction comes from a person who represents the authority, it is not challenged. Only a few people refuse to obey. Civil disobedience of whistleblowers has been making news for several years. But we haven’t refused to obey to our values and even in most of the cases we have obeyed the law, the laws in force in our respective countries.
When one questions the core business of the company where one works, one faces a steamroller. Facing so much denial and lies, facing a system that crushes, whistleblowers can until now only enter a state of resistance and resilience. The statements of the French journalist Florence Hartmann (Florence Hartmann, Lanceurs d’alerte. Ils risquent leur vie pour protéger la nôtre, Éditions Don Quichotte, Paris, 2014) are extremely accurate when she explains that “whistleblowers have the courage to endanger their life to protect ours”. She adds that “whistleblowers disturb because they prove by their individual gesture the lack of courage of the other ones”. This is precisely what I felt when I met the eyes of my former UBS colleagues at the hearing at the Paris TGI court at the beginning of 2017.
Protecting Whistleblowers is a Must
The exemplary behaviour of the whistleblower is inscribed in the frame of a citizen’s act of courage and resistance. Most of the time, this integrity costs them their career, their job and turns upside down their personal and professional lives. The civil responsibility of the ones who rise in the general interest leads them to a descent into hell to which they were unprepared. Their honesty is not rewarded and the ordeals that they crossed are until this day not compensated.
Pierre Condamin-Gerbier is an emblematic case in the UBS file. Pierre was one of my former French colleagues, a banker at UBS in Geneva. He was part of the ‘France International’ team, which means that he was one of the client advisors managing the financial assets of French clients. An international warrant has since been delivered against PhilippeWick, the ex-boss of this commercial team, who has been indicted in the UBS penal case in France. After having shown quite quickly his disagreement on the commercial strategy turned towards the bankoffshore (I have myself blown the whistle on this business in France since 2008), Pierre left UBS in 2006 and then joined Reyl, another Swiss bank, for which he became one of the Associate Directors. My story is one of the most ‘mind-blowing’ in France, demonstrating the relentlessness and even the perversity with which those who speak the truth are crushed. But what then can one say about Pierre’s case?
Informed by the media scandal disclosing the tax evasion fraud of our former French Minister of Budget, whose bank accounts at UBS Geneva had then been transferred to be housed at Bank Reyl, Pierre Condamin-Gerbier witnessed on the demand of the French Justice in the context of the Cahuzac affair. The French judge in charge of the case then made him believe that he was working hand in hand with the Swiss justice to give him the feeling that he was not risking anything. That turned out to be false of course. In this case of seismic magnitude at the highest level of the State, Pierre had naturally accepted to testify at the French Senate and at the French Parliament (Assemblée Nationale). His auditions had to stay confidential but they became public several days later, totally available on Internet. The secrecy of the instruction had been deliberately violated when the content of the hearings was exposed publicly in a newspaper article of Le Monde, which resulted in the incarceration of Pierre in Switzerland, upon the demand of the Bank Reyl, to silence him. The conditions of the detention were particularly severe because my ex-colleague had been detained seventy-six days in secret, twenty-three hours per day. The trauma of the imprisonment for a citizen who had collaborated with the justice of his own country is such that it was easy to force the French witness to confess facts and information in order to help the bank Reyl in its trial in France. Victim of hateful blackmail, Pierre was obliged to confess before the Swiss judge facts and wrongdoings which were false. If he had not accepted, it was the prospect of having to spend twelve years in detention. On the other hand by agreeing to lie, a suspended sentence was guaranteed.
When he exited prison, Pierre Condamin-Gerbier experienced other types of pressure. His home was broken into and death threats were sent to him. At the same time the information that was extracted by the Swiss Courts from this French citizen compelled him to betray one’s oath. In Switzerland, witness tampering thus had been exercised to assist a national bank on trial in France which is a crime of extreme gravity. When I met Pierre in Paris in 2016, he told me that the bank Reyl had transmitted to the Swiss authorities the contents of the French procedure, which is absolutely forbidden. Moreover, in 2013, the Swiss press relayed information via defamatory articles driven by the media whose bank Reyl was one of the main advertisers. This reminds me that Swiss journalists also received pressure from their management when they wanted to write articles about me. Having been sentenced to two suspended years in December 2014 for violating Swiss banking secrecy, Pierre Condamin-Gerbier is held on a leash. If he tells the truth, it is the immediate return to prison.
Sentenced to a heavy fine of 1,875 million euros in December 2016 for having managed the non-declared wealth of our socialist Minister of Budget, the bank Reyl chose to withdraw its appeal as per an article published by Le Point on August 8th, 2017. The judgment also condemned François Reyl to a one-year suspended prison sentence and a 375,000 euro fine. Accepting this sentence and withdrawing the appeal is equivalent for this bank and its manager to recognize their responsibility. They would probably have more to lose by appealing with the risk of additional revelations among other things. Otherwise if pressures had not been exercised in Switzerland upon my ex-colleague, we are entitled to ask ourselves if the December 2016 convictions would not have been heavier.
Whistleblowing is both a problem of human rights and a tool that allows to be assured that the human rights are indeed being respected. It is the duty of the States to protect whistleblowers who report irregularities relating to administrations, international organizations and to the private sector. Each whistleblower-employee must be respected instead of being subjected to sanctions, retaliations, dismissals, prosecution or imprisonment. The States and the companies are responsible for the implementation of remedies to strengthen the reliable whistleblowing channels that include information breaches.
At the beginning of 2015, Suelette Dreyfus, a writer and a researcher in information systemsat the Melbourne University (Australia), evoked the situation of whistleblowers in Germany where their protection is one of the weakest in the world. “No effective framework is in place to deal with whistleblowers. This means that key in-house informants face injustices when violations of rights and corruption are suspected. A law to protect whistleblowers according to European and International standards is imperative. It is necessary to protect against reprisals and strengthen democratic principles in general. [...] The only certainty is that the road is long and will be rocky”.
The consequences which a whistleblower is being exposed to are of a rare unprecedented violence. Have you heard of the story of a frog that was quenched into cold water? Regularly one heats up the water by an additional degree. We find a few hours later the batrachian cooked without him realizing it. If the frog had been thrown into boiling water, it would obviously have struggled hard to escape. This is a parallel with the life of whistleblowers. The pressures for the most part have increased. Nowadays, we live lives which nobody would endure. So much is the violence that we suffer and added to the one we have already suffered, it is unbearable.
An efficient way to protect a whistlebower is to guarantee anonymity internally. The researchers have studied the organization of companies facing whistleblowers and have reached the conclusion that the whistleblowing tools are little known and rarely used by employees, even feared by these. Mahaut Fanchini, researcher in management science states that “devices designed to enable the alert do not really allow the anonymity of the whistleblower”: only its relative confidentiality to one or more dedicated recipients (Ethics Director, Responsible for the cell, a dedicated committee) will have access to the identity of the whistleblower”. For the researcher, these elements are “problematic. There is something ‘sacrificial’ about the denial of a whistleblower anonymity that implies ‘pay attention to what you say because we know who you are’. One wants to know who the messenger is even before listening to his message”. (Mahaut Fanchini, Le Doute de l’employé comme impensé organisationnel : la fabrique des lanceurs d’alerte, viva attended at the Université Paris-Dauphine in 2017)
We can only understand this analysis since the internal alert, even if it is announced as anonymous, is not necessarily because the employee initiating the alert on the computer server of the company for which he works leaves a trace to identify his computer.
As outcasts of the society simply for having done what is right and in the interest of all, such is the price to pay to enter into resistance of a system that crushes. But behind this system, are there not men and women who back it? For having dared to make revelations on the turpitudes of the contemporary world, the ‘Resistants’ of the beginning of the XXIst century would be heroes for some citizens. Does this (un)merited title require that they be treated as pariahs by all the others?