Contents:
Maltese legislation - overview
Malta's perception in the whistleblowing world can be dual. It is both comprehensive in terms of legislation and ineffective in speaking about real cases of whistleblowers asking for protection. While Maltese media present whistleblower regulations as second-best among similar European countries' regulations, the conclusion of NGOs is slightly different.
Strong protection on paper, and availability of information but no evidence of working institutions added to the evaluation of the Maltese approach. What is it about Malta and how to evaluate the perspective of whistleblowing in the country?
“Protection of the Whistleblower Act” is a relatively new provision in Malta dating back to 2013 - a few other European countries similarly adopted whistleblowing regulations after 2010. Even though Malta had a chance to implement a whistleblowing protection provision as a part of the Consumer Affairs Act (1994), it never happened. The law on product safety (2001) also could be complemented with a whistleblower provision, however, Malta has chosen a long path to develop a separate whistleblower protection law.
A new generation of whistleblowing laws (compared to the Public Interest Disclosure Act from 1998 in the UK), to which Maltese law belongs is way more comprehensive than previous general regulations on safe work conditions. However, new laws do not necessarily work better, and that’s exactly the case in Malta.
Whistleblowing in Malta - questions and answers
Describing the law in short, we can say it is complex and perspective, but with limited coverage of disclosures that can be considered protected. Let's highlight the key points in Maltese legislation which we usually consider crucial.
Is anonymous reporting allowed in 'The Protection of the whistleblower Act'?
It is clearly stated that disclosures made anonymously shouldn’t be considered protected. Still, compliance officers and authorized personnel may take these reports into account and start the investigation. None of the whistleblower's rights, unfortunately, will apply.
Are whistleblowers protected from retaliation?
The Act precisely defines detrimental acts of employers and protects whistleblowers from the most common ways of retaliation: displacement, disciplinary action, dismissal, and others. Another positive side of the Maltese approach is a broad definition of employees who are eligible for protection: volunteers, former employees, contract employees, and more.
Which companies are obligated to have reporting procedures in place?
The Act covers both public and private sectors, but with major exclusions and limitations. Private entities with less than 250 employees and a 50 million euro turnover are excluded from the Act, which leaves a vast majority of private entities beyond the legislation's scope.
Which disclosures are protected?
As a starting point for whistleblowing, the good faith requirement is mentioned in "Protection of the Whistleblower Act". A usual requirement that protects both the whistleblower and the employer - acting out of good intentions - is supported with one more requirement. The disclosure shouldn't be made for personal gain - a rare and from a certain point of view unnecessary limitation that doesn't determine the importance of the raised concern. The good faith requirement is also ambiguous - with no precise definition, authorities may abuse the law and apply it according to personal interests.
Do whistleblowers receive a follow-up on the case?
The reporting officer must inform the whistleblower about the case status in a reasonable time frame. However, the exact period of time isn’t specified.
What is the penalty for detrimental actions against whistleblowers?
Malta is not as strict as other EU member countries (France, Germany): for threatening the whistleblower’s or his/her relatives' life the accused person will get not more than €5,000 as a penalty and €10,000 in case the accused person achieved his/her aim in punishing the whistleblower.
Who carries the burden of proof?
In the regulation of 2013, the burden of proof is on the whistleblower - he or she should provide evidence of misconduct and prove that whistleblowing is legitimate. In the EU Whistleblowing Directive, the burden of proof is always on the reported person, which significantly simplifies the process of reporting for the whistleblower.
What's in 2021?
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The timeline of Maltese legislation development would be the following:
2000, 2001 – White Paper and Product Safety Law. The White Paper introduced several amendments to the criminal code and explicitly forbade corporate corruption, but didn’t mention whistleblowing as a necessary part of corporate compliance. Product Safety Law could also include a whistleblower protection provision, since whistleblowers are directly involved in reporting on goods circulation and product safety violations. Again, this opportunity was never used by Malta.
2013 – “Protection of the whistleblower Act”. Dedicated legislation on whistleblower protection was implemented on the national level – this put Malta on the list of progressive countries which encourage and protect whistleblowing.
2019, 2020 – EU Directive on Whistleblowing was adopted, and member states are obliged to comply with it and amend the existing legislation or support it with necessary institutions. Remarkably, Malta didn’t declare any steps toward the EU Whistleblowing Directive. In 2020 nothing was done to strengthen Maltese law according to the EU requirements. Even though other European countries with existing dedicated laws contributed to the EU Directive rollout, Malta stays inactive. In 2021 the implementation should be finished among all the EU member countries, so there is a need for Malta to speed up.
The Maltese story is not over in 2021. We evaluate the law not by the law itself, but by the way it is applicable to real-life situations (with the support of functioning institutions). And that's the trouble with Malta, which BluePrint pointed out in its evaluation – it is hardly possible to predict how the officials will apply the law to protect whistleblowers. The real case which connects Greece, the country with no whistleblowing provision, and Malta with a dedicated law is Maria Efimova's report (2017).
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Efimova applied for protection after the reporter to whom she provided information, Daphne Caruana Galicia, was killed in her own car with a bomb detonator. Since both Efimova and Caruana Galicia revealed the information on Maltese high-level officials involved in the Panama Papers scandal, Malta became a dangerous place for them to live.
The case of Efimova is still ongoing; thus, no full protection was provided to the whistleblower and her family. Apart from receiving threats and being prosecuted in Malta, Efimova bears all the legal costs in the Maltese court – another evidence of weak whistleblowing legislation which blocks whistleblowers from reporting.
Whistleblowers can get free legal assistance according to the EU Whistleblowing Directive, as well as compensation for moral damage. As long as Malta doesn't follow the recommendations and protect its whistleblowers, this chance is also lost for Malta citizens. The longer Malta ignores whistleblowers' safety, the more corrupt and unattractive investments it's going to be.