The Law on the Protection of Whistleblowers was promulgated in the Polish Journal of Laws on June 24, 2024, which in practice means that it will come into force on September 25, 2024. Poland was the last country to complete the process of adapting the EU whistleblowing directive into national law. The whistleblower protection system is designed not only to protect whistleblowers, but also to quickly detect irregularities in the organization, reduce legal risks and also to reduce financial and image damages. To this end, liability of a whistleblower should also have been introduced for knowingly making a false report.
The primary obligation imposed by the Law on on the Protection of Whistleblowers Protection on legal entities with at least 50 employees is to establish a procedure for making reports. This entails the obligation to receive internal reports, ensure adequate (systemic) protection of whistleblowers and others, conduct follow-up actions, and maintain a register of cases. The number of 50 persons performing work for an entity includes full-time employees and persons performing work on a basis other than employment contract (e.g., under civil law contracts), if these persons do not act as “employers” in connection with the activities performed.
Exceeding the limit of the employment should be examined by legal entities twice a year, i.e. as of January 1 and July 1 of a given calendar year. Exceeding the limit of 50 employees during a given calendar year means complying with the Law on the Protection of Whistleblowers.
The employment limit does not apply to entities that perform activities in the fields of financial services, products and markets, AML and CFT, transport safety and environmental protection.
Significantly, the Law on the Protection of Whistleblowers provides for criminal liability for preventing or obstructing reporting, retaliation, revealing the identity of the whistleblower and associated persons, failure to establish or improperly establish an internal reporting procedure, and reporting or public exposure made in bad faith. Those who commit such acts face fines, restriction of liberty and imprisonment (up to one year or three years, depending on the act).
In particular, the inclusion of the last mentioned offense in the Law is positive. The inclusion of sanctions for obviously unfounded internal reporting may have a preventive effect on whistleblowers, thereby preventing reports of obviously false violations aimed solely at creating chaos inside the organization.
Moreover, the Law explicitly provides for the possibility of claiming compensation and/or remedy by a person who has suffered damage due to the whistleblower’s knowingly reporting or public exposure of false information. The source of the whistleblower’s liability is to be the violation of the injured person’s personal rights, making the possible assertion of such liability based on the provisions of the Civil Code.
CRIMINAL LIABILITY OF A WHISTLEBLOWER
In discussions over the years on the rules for the protection of whistleblowers, the issue of the liability of those who make a false report has not often been raised. Therefore, the legislature’s decision to criminalize false reporting should be applauded.
The crime stipulated in Article 57 of the Law on the Protection of Whistleblowers can be committed by a whistleblower making a report either internally, externally or making a public disclosure. From the perspective of criminal liability, it is irrelevant for what purpose a false report or public disclosure is made. Usually, the whistleblower’s motive is that his actions are aimed at undermining the authority of another person (in particular, the person who is the subject of the false report), presenting himself in a better light and thus boosting his position in the organization, obtaining protection from termination of employment or achieving a specific financial benefit.
The essence of the crime under analysis is the objective falsity of the information about the violation of the law. This means that the person committing the crime must be aware of the fact that the information he or she provides is false at the time of reporting. The untrue information may relate to an incident that did not occur at all, or information relating to an incident that did occur, but which did not constitute a violation of the Law on the Protection of Whistleblowers or an internal procedure of the legal entity.
The crime under Article 57 of the Law on the Protection of Whistleblowers can be committed by acting with direct intent. He does not commit the aforementioned crime who acts with an eventual intent, i.e. when he or she takes into account the possibility that the reporting or public disclosure he or she is making is objectively false, but he or she is not sure about it.
The time when a crime is committed is when the report or public disclosure is made, in the form chosen by the person (telephone call, meeting, written or electronic form). No crime is committed when, in the course of the legal entity’s follow- up actions, the whistleblower learns that the information he or she provided in the text of the report is false. As a rule, a whistleblower should be expected to inform the entity or the person taking follow-up actions of this fact, as he or she learns that the information he or she provided is untrue. It is impossible to agree with the claim that the whistleblower’s failure to inform as mentioned above will be treated the same as making a false report. Of course, a legal entity may expect such behavior from a whistleblower, but under the Law on the Protection of Whistleblowers it is not criminalized. In Polish criminal law, it is forbidden to apply an extensional interpretation if this would lead to the extension of criminal liability. Therefore, it must be concluded that such an abandonment cannot be equated with making a false report.
Excluded from the scope of Article 57 of the Law on the Protection of Whistleblowers, is the case of reporting a violation of internal regulations and ethical standards applicable to an organization, as mentioned in Article 3(2) of the Law on the Protection of Whistleblowers. This is a kind of inconsistency and a significant defect in the solution to criminal liability for making a false report.
PUNISHMENT FOR COMMITTING A CRIME
This crime is punishable by a fine, restriction of liberty or imprisonment for up to 2 years. Therefore, as for the possibility of imposing a fine or a restriction of liberty instead of imprisonment, or imposing a restriction of liberty along with imprisonment in the case of committing the crime stipulated in Article 57 of the Law on the Protection of Whistleblowers – the provisions of the general part of the Criminal Code, specifically Article 37b and Article 37a § 1 of the Criminal Code, will apply.
This means that, in certain cases, the court may impose a prison sentence and a sentence of restriction of liberty at the same time. On the other hand, if the sentence of imprisonment imposed would not exceed one year, the court may instead impose a sentence of restriction of liberty of not less than 4 months or a fine of not less than 150 daily rates.
Also in the case of the described crime, Article 69 of the Criminal Code will apply. The court will be able to conditionally suspend the execution of a sentence of imprisonment if the whistleblower is sentenced to a term of imprisonment not exceeding one year and if the whistleblower was not sentenced to imprisonment at the time of the offense, and if such conditional suspension of the execution of a sentence of imprisonment is sufficient to achieve the goals of the punishment.
CESSATION OF A CRIME AND PROSECUTION
According to Article 101 § 1 (5) of the Criminal Code, the punishability of a crime under Article 57 of the Law on the Protection of Whistleblowers ceases when 5 years have passed since the crime was committed. According to Article 102 § 1 of the Criminal Code, on the other hand, if criminal proceedings (not necessarily against a specific person) are undertaken within the aforementioned five-year period, the punishability of the crime ceases with the expiration of 15 years from the time it was committed.
The analyzed crime is prosecuted by public indictment, without the need to obtain a request from the victim for prosecution. Preliminary proceedings in the form of an investigation are conducted by the police under the supervision of the prosecutor.
CIVIL LIABILITY OF A WHISTLEBLOWER
A whistleblower or public exposer who acts in bad faith does not receive the protection of the Whistleblower Protection Law. This means that actions taken against him that negatively affect his legal or factual situation are not revenge actions. Intentionally making a false report or public disclosure exposes the whistleblower not only to criminal liability, but also to disciplinary and civil liability.
A report or public exposure made in bad faith is often equivalent to an infringement of the interests and personal rights of others (the entity, the alleged violator). Thus, the provision of Article 15 of the Law on the Protection of Whistleblowers constitutes a declaration that the offender of a false report or public exposure bears civil liability for the resulting damage or harm on general grounds.
In view of this, a person injured by the actions of a whistleblower will have to prove:
- the incident causing the damage or harm in the case of claim for remedy;
- the amount of the resulting damage (or harm);
- the causal connection between the whistleblower’s actions and the occurrence of the damage, which consists in proving that the specific behavior of the whistleblower caused damage (or harm) of a certain value.
The legislator has not regulated the minimum amount of compensation – its amount will therefore depend on the specific facts and the extent of the damage caused by the reporting of false information.
It is also worth noting that the legislator used the word “intentional reporting or public exposure” – it can be anticipated that the eventual pursuit of claims by a person injured by the actions of a whistleblower will require the proving of this awareness, which in practice may be a difficult task.
SUMMARY
Making a report or public exposure in a situation where the reporter/exposer knows that a violation of the law has not occurred means that such a person does not enjoy the protection provided for a “whistleblower.” Thus, regardless of the criminal and civil liability for making a false report or public exposure under the Law on the Protection of Whistleblowers, such a person may be subject to legal liability (including, but not limited to, criminal liability) provided for, at least, violation of business confidentiality, illegal acquisition of information, defamation, etc.
Entities obliged to implement an internal reporting procedure in their organization should instruct persons performing work about the importance of workplace reporting from the beginning of the procedure’s entry into force. These individuals must be aware that not only improper whistleblowing behavior by the Employer or those acting on its behalf is punishable (and gives rise to criminal, civil and disciplinary liability). Sanctions are also provided for those who make reports in bad faith, knowing that the information provided in them is not true.
Full version of the article is available in Polish here.
