In this series of articles, CLEMENS focuses on the new whistleblower law and the key points that companies need to be aware of when implementing the necessary procedures to comply with the whistleblower law.
In this article, we focus on when a whistleblower is protected under the Whistleblower Act.
If your company has not yet established a whistleblower scheme or if you have questions about the new whistleblower law, you are always welcome to contact our whistleblower team.
You can also read more about CLEMENS' whistleblower scheme here.
1. conditions for protection
As a whistleblower, you have a number of rights before, during and after you have made a report or disclosure in accordance with the rules of the Whistleblower Act.
You can read more about what matters a whistleblower can report here.
An employer cannot validly agree to derogate from these rights to the detriment of a (potential) whistleblower, but there is nothing to prevent the employer from choosing to grant the whistleblower rights that put him or her in a better position than the rules of the Whistleblower Act.
This mandatory nature means, for example, that an employer cannot validly impose or maintain an obligation of confidentiality on its employees, which means that employees are prevented from disclosing or publishing information about serious matters in the company if the conditions for disclosure or publication are otherwise met.
A prerequisite for protection is that the whistleblower had reasonable grounds to believe that the information was correct at the time of reporting and that it relates to matters falling within the scope of the law. However, you are not protected if you knowingly report false or misleading information.
2 What does it mean to be protected under the Whistleblower Act?
If the employee is protected under the Whistleblower Act, this means that they cannot be held liable for disclosing confidential information or breaching their duty of confidentiality. However, this only applies if the whistleblower has reasonable grounds to believe that the information in the report is necessary to reveal a criminal offense or other serious matters that fall within the scope of the Act.
However, a whistleblower may incur criminal liability if the acquisition of the information itself constitutes a criminal offense. This would be the case, for example, if the information was obtained by hacking or unauthorized eavesdropping on other colleagues.
For example, the Supreme Court's decision of January 13, 2022, where a municipal employee was convicted of violating his duty of confidentiality under section 152(1) of the Danish Criminal Code by disclosing confidential and sensitive information about 89 citizens to a journalist at the newspaper Information. Neither section 152 e, no. 2 of the Danish Criminal Code nor the Whistleblower Act could lead to impunity.
You can read more about the decision here.
However, if the documents are documents that the employee has legal access to, they will not be criminally liable for making copies of such documents or removing them from the workplace.
3 Internal and external whistleblower scheme
If the company to which the confidential information relates is subject to an obligation to establish an internal whistleblower scheme, the whistleblower can make the report to this internal whistleblower scheme. An internal whistleblower scheme may well be administered by an external partner, including, for example, a Attorney. Any external administration does not mean that it is an external whistleblower scheme in the sense of the Whistleblower Act.
You can read more about the requirements for establishing internal whistleblowing schemes here.
The whistleblower can also choose to make a report to an external whistleblower scheme. The whistleblower is always entitled to use an external whistleblower scheme rather than an internal one or in continuation of an internal report, e.g. if the company or authority to which a report has been made does not return or take the matter seriously.
In Denmark, the primary external whistleblower scheme is administered by the Danish Data Protection Agency. In this context, it is important to note that reports can be made regarding all matters covered by the Whistleblower Act to the Danish Data Protection Agency's external whistleblower scheme, and this scheme is thus not limited to reports that can be related to data protection.
4 Disclosure under the protection of the Whistleblower Act
In special circumstances, a whistleblower may choose to publish confidential information about a company or authority under the protection of the Whistleblower Act.
However, the whistleblower is only protected if one of the following conditions is met:
- If the whistleblower has first made a report to the relevant company or authority's internal whistleblower scheme and an external whistleblower scheme or directly to an external whistleblower scheme, without appropriate follow-up within the 3-month deadline set out in the Whistleblower Act.
- If the whistleblower has reasonable grounds to believe that the breach may pose an imminent or obvious danger to the public interest.
- If the whistleblower has reasonable grounds to believe that by reporting to an external whistleblower scheme there is a risk of retaliation or that, due to the specific circumstances of the case, there is little prospect that the violation will be effectively addressed.
The rules emphasize the importance of both public authorities and private companies having control over their internal reporting channels, so that any illegal matters are brought to light without unnecessary and unfortunate consequences for both the whistleblower and the company/authority.
5 CLEMENS' Whistleblower Scheme
If you have any questions about this article, or if your company has not yet established an internal whistleblower scheme, please contact the CLEMENS whistleblower team.
CLEMENS' whistleblower scheme is user-friendly, flexible and quick to set up. With an efficient and secure handling of reports, CLEMENS' whistleblower scheme enables you to quickly and discreetly rectify undesirable conditions and prevent potential financial losses.
When you choose CLEMENS' whistleblower scheme, you don't have to worry about multiple complicated rules that require employee training, an administrative setup and unnecessary use of internal resources, and you ensure that all reports are handled legally and reported back to the company quickly and efficiently.
