Call for whistleblowing is not a crime: The case of a peace activist
The peace activist Hermann Theisen has been convicted by several lower courts for calling on employees of weapons manufacturers to expose illegal activities of their employers. EDRi observer Gesellschaft für Freiheitsrechte (GFF, Society for Civil Rights) supports him in his appeal procedures to get German courts to recognise that neither whistleblowing in the public interest nor the call for it are criminal offences. On 16 January 2019, the Munich District Court was the first court to acquit Mr. Theisen.
Hermann Theisen is not a whistleblower – but he wants to encourage others to blow the whistle. To fight illegal arms exports, he regularly hands out leaflets to the employees of weapons manufacturers close to their company premises. In these leaflets, he asks employees to consider blowing the whistle on their employers’ illegal activities, such as violations of export restrictions. The leaflets also describe the legal risks that whistleblowers face.
Conviction of Hermann Theisen intimidates potential whistleblowers
It’s clear from the leaflets that Mr. Theisen’s calls are not directed against legal business activities, but against illegal arms exports. Nevertheless, in 2018, three lower courts in different parts of Germany convicted Mr. Theisen of having “publicly incited to disclose trade and industrial secrets” and fined him for it. The convictions do not only affect Mr. Theisen personally, but also intimidate potential whistleblowers.
GFF finds that the judgments are legally questionable in several regards. Most importantly, the behavior to which Mr. Theisen allegedly incited is by no means a criminal offence. By disclosing illegal business activities, whistleblowers contribute to the investigation of criminal offences. This is reflected in European law: according to Art. 5 of the EU Directive 2016/943 on trade secrets, disclosing information on illegal activities cannot be punished. Whistleblowing is not a crime, but on the contrary an act of public interest that shows courage.
Milestone for protection of whistleblowers in Germany
On 16 January 2019, the Munich District Court, to which Mr. Theisen had appealed with GFF’s support, took the same view and acquitted him of the charge. Mr. Theisen could rely on the Directive itself as Germany has not yet transposed it, despite the transposition period having ended on 9 June 2018.
This is the first time the EU Directive on trade secrets has been applied by a German court and it’s a milestone for the protection of whistleblowers in Germany. GFF will continue to support Mr. Theisen in order to obtain an acquittal in his two other appeal proceedings. The German judiciary should recognise the important function whistleblowing has in a democracy, and that whistleblowers must be protected from prosecution, rather than intimidated by it.
Gesellschaft für Freiheitsrechte (GFF, Society for Civil Rights)
https://freiheitsrechte.org/english/
Calling for whistleblowing is not a crime: the case of the German peace activist (12.02.2019)
https://whistleblowingnetwork.org/2019/02/12/calling-for-whistleblowing-is-not-a-crime-the-case-of-the-german-peace-activist/
Notice of appeal before the Munich District Court of 14 January 2019 (in German)
https://freiheitsrechte.org/home/wp-content/uploads/2019/01/2019-01-09_Berufungsbegründung_Theisen_Muenchen.pdf
EU Directive 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (08.06.2018)
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32016L0943&from=EN
Germany: Fighting the anti-whistleblower provision (25.01.2017)
https://edri.org/germany-fighting-anti-whistleblower-provision/
(Contribution by EDRi Observer Gesellschaft für Freiheitsrechte, Germany)
