Whistleblower Protection and the Right of Access

Inhaltsverzeichnis

1. Frontmatter

2. 1. Introduction

   Stephan Koloßa

   Abstract

   The past has shown that fraudulent schemes both in the business context and in the public sector, often remain undetected and without consequence for a significant period of time. This is also true for situations in which the misconduct occurs on a large scale. In the case of the so-called Panama Papers, the Panamanian law firm Mossack Fonseca assisted various public figures like politicians, football officials, billionaire entrepreneurs and celebrities in illegally moving their money out of the reach of the tax authorities of that state where they gained their profits.

3. 2. Protection of Whistleblowers’ Confidentiality Under European Law

   Stephan Koloßa

   Abstract

   In recent years, the number of illegal actions in particular at the corporate level has grown, or at least the number of cases that came to light, increased. Such misconduct has often only been exposed because brave informants have risked a great deal in order to put an end to it. Hence, it is no surprise that whistleblower protection has come into focus. If violations of law and order go undetected and unpunished for years because employees of a company fear to report illegal activities for fear of reprisals or consequences, it can have several negative effects. It can harm the company itself, but also third-parties, the economy in general, public procurement programs, the general public, and even the rule of law could be affected. Protecting those who would assist in reducing unlawful or even criminal behaviour has two main functions: Protecting the individual’s actions as well as protecting the public good. A well-balanced whistleblower protection may have positive effects on both of these.

4. 3. The Right of Access under European Data Protection Law

   Stephan Koloßa

   Abstract

   In the current regime of European data protection law, the General Data Protection Regulation (GDPR) is the dominating legal foundation. The right to data protection is enshrined in Art. 8 EU Charter and constitutes a fundamental right. This fundamental right is regarded as a right that is separate from the right to privacy, which is provided for in Art. 7 EU Charter. As the right to data protection has become such a cornerstone in the area of digital rights and daily life, the GDPR sets up more concrete and more concrete and strict rules.

5. 4. Synthesizing the Confidentiality of Whistleblowers and the Right of Access

   Stephan Koloßa

   Abstract

   Based on the above-mentioned dilemma regarding the whistleblower’s protection under EU and the Council of Europe law on the one hand and the data protection right of access under EU law on the other hand, the question arises under what conditions is an employer obliged in an individual case to provide the desired information to the data subject and to what extent must the employer protect the confidentiality of the whistleblower’s identity. The fact that these two rights may directly clash has already been foreseen by the legislator of the Whistleblower Protection Directive.

6. 5. Conclusion and Outlook

   Stephan Koloßa

   Abstract

   Overall, it is easy to conclude that the data protection right of access is generally designed as a strong claim that lies at the heart of the data subjects’ rights under the General Data Protection Regulation (GDPR). On various occasions, the European Court of Justice (ECJ) confirmed that only a stark and robust right of access enables the data subject to control his or her data and make use of the other rights under the GDPR such as the right to correction, erasure, or to data portability.