Assembly in Europe requests protection for whistle-blowers

Monika Ermert, Heise, Intellectual Property Watch, VDI-Nachrichten, Germany

PUBLISHED ON: 02 Oct 2013

Effects of the trial of Bradley Manning1 and the recent indictment of Edward Snowden - who revealed massive internet communication surveillance by the US and other secret services - become visible. At their session in Strasbourg on October 2nd, the Parliamentary Assembly of the Council of Europe (PACE) passed a recommendation and a resolution intended to push whistle-blower protection and measures against abuse of "national security“ as a pretext to create a state inside the state.

"'Whistle-blowers' who disclose state wrongdoing in the public interest should be protected from retaliation, provided they acted in good faith and followed procedures,“ the Assembly agreed, and "crimes such as murder, enforced disappearances, torture or abduction committed by state agents do not deserve to be protected as 'state secrets'."

Support for the Tshwane principles

In their short recommendation "National security and access to information“ to the 47 Council of Europe member the PACE asks governments to align their legislation with the "Global Principles on National Security and the Right to Information," the so called "Tshwane Principles," developed by 22 Human Rights organisations from around the world.

The Tshwane Principles include requirements for restricting the right to information on national security ground, list what might be legitimately restricted and where restrictions are overridden. "Gross violations of human rights or serious violations of international humanitarian law“ as well as the systematic or widespread violation of the rights to personal liberty top the list. Yet one special section also details the rights for everybody to know about the laws and procedures governing surveillance.

In the more explicit resolution passed by the PACE alongside the recommendation of its members with regard to surveillance requests: "The neutrality of the internet requires that public authorities, internet providers and others abstain from using invasive wiretapping technologies, such as deep packet inspection, or from otherwise interfering with the data traffic of internet users."

Whistle-blower protection has also been on top of the agenda in the fourth NSA inquiry session of the Civil Liberties (LIBE) Committee this week in Brussels, where former MI5 intelligence officer Annie Machon also recommended to define national security, establish legitimate channels for whistle-blowers from the intelligence community to give evidence of malfeasance and consider banning the exemption of secret services from access to information obligations.

Good ideas, weak implementation?

The Council of Europe has dealt with access to public information years before in its Convention No. 205 on "Access to Official Documents“ (passed in Tromsø in June 2009). But this Convention has not even been signed by many member states.

While 10 ratifications are required for it to come into effect, so far only six countries have ratified: Bosnia and Herzegovina, Hungary, Lithuania, Montenegro, Norway and Sweden. Belgium, Estonia, Finland, Georgia, Monaco, Slovakia and Slovenia have signed, but not yet ratified it – a quite disappointing turnout the PACE rapporteur, Arcadio Díaz Tejera (Spain, SOC), concluded in his interesting report on the developments.

Díaz Tejera in that report also clearly acknowledges the urgent need to update the Convention 205, because from the start it had some inherent weaknesses, especially the long list of possible limitations to the right of access. This list included the protection of national security (sic!), defence and international relations, and even commercial and other economic interests, and the protection of the environment. Proportionality and legality is requested, but the vague terms provide a rather large back door for governments.

Once the Convention 205 comes into effect, the rapporteur hopes the deficiencies will be addressed by the "Group of Specialists," planned to monitor the implementation.

Just another backdoor could be included in the Article 5 of another draft recommendation which addresses protection of whistle-blowers in particular. This recommendation, proposed by the PACE already in 2010, provides "a special scheme or rules, including modified rights and obligations, (that) may apply to information relating to national security, defence, intelligence, public order, or international relations of the state." The whistle-blower recommendation is expected to be passed next year by the Council of Europe Committee of Ministers, possibly alongside todays recommendation on national security and access to information.

Quicker acknowledgment of whistle-blowers?

The well-meant legislative recommendations obviously still need time, and still have to be discussed in the light of recent months, the post-Snowden era, so to say. The Green and Left Party Group in the European Parliament have proposed one step to do something now, by proposing Edward Snowden for the short-list of the Sakharov-Prize. But do not count on Snowden being able to travel to the EU to receive it – if he is awarded over the opinion of those in the European Parliament and elsewhere who say he deserves no protection.

Footnotes

1. Chelsea Elizabeth Manning was born and trialled as Bradley Edward Manning.

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