The first decision in Denmark with reference to the Whistleblower Protection Act, which came into force in December 2021, does not give much hope.
An employee in a municipality in Denmark published about systematic discrimination against vulnerable people via the press in 2017. The journalist Ulrik Dahlin from the magazine “Information” published the case in 2017 with the following essential facts:
Vivien J. was employed as an occupational therapist at Frederiksberg Municipality in Denmark. In November she started2015 working as part of the rehabilitation team. Her task was to be part of a team deciding on early retirement for people with serious illnesses. According to her statements to Dahlin, the aim of the competent authority was to systematically reject applications for early retirement and social benefits in order to save costs of about 8,000 DKK per person. The persons concerned were put into further training and retraining measures against their physical or mental capabilities. They were offered further examinations and certification courses, etc. For example, a 64-year-old patient who was seriously ill was offered a two-year vocational preparation course instead of being granted early retirement.
Vivien perceived the decisions not only for the cases she was responsible for, but also the cases that were discussed in the team. Thus, in the period from 2015 to 2016, she learned about 89 cases in which the authority rejected the applications, even though even the responsible doctors thought that continued employment was not possible. She disapproved of the practice and complained about the procedure to her superiors. She was told not to interfere. Her appeals against decisions were ignored and she was accused of incompetence. Ultimately, after disagreements, she was dismissed after only six months in the rehabilitation team in March 2016.
Due to reprisals by her employer, Vivien took the information from 89 patient files and passed it on to the press in confidence.
Thereupon, the authority denied all accusations and filed charges for passing on and publishing secret and sensitive information. The court ruled against Vivien in the first instance and punished Vivien not only with a fine, she also had to bear the costs of the proceedings.
Vivien appealed. The Supreme Court upheld the decision of the District Court on 13 January 2022 (judgment in case 94/2021). The competent judge found that the taking and keeping of this highly sensitive patient data constituted a violation of Article 155 of the Danish Criminal Code. Because of the disclosure of the data to Dahlin, the court saw a culpability under Article 152e(2) of the Criminal Code.
In the ruling, the Supreme Court found that the disclosure of the sensitive information on 89 citizens did not justify the whistleblower’s interest in uncovering irregularities in the municipality’s case handling. The fact that she took the highly sensitive patient data home, kept it there for a long time and passed it on to the press was punishable. The desire to uncover the wrongdoing could have been fulfilled in a different way. The new law for the protection of whistleblowers could not lead to impunity either.
Vivien justified the disclosure by saying that she had given the data to the journalist in good faith and confidentially. She did this after unsuccessfully reporting internally and facing reprisals. She had factual reasons and did not act for personal reasons. The personal data of the persons concerned had never been published, so the damage to the persons concerned was minimal.
The whistleblowing was of public interest according to Article 152a(2) of the Criminal Code. The new law on the protection of whistleblowers also grants immunity from prosecution if wrongdoing is revealed in the public interest.
Dahlin’s press article led to a public debate and pre-formulation of legislation in 2018.
The prosecutor submitted that citizens must trust that their sensitive data, such as diagnoses and medical conditions, will be treated confidentially at the municipality. The interest in protecting this data outweighed the interest in freedom of expression. According to the prosecution, Vivien could have made general statements and given examples of cases she was aware of. She could also have made the information anonymous or obtained the citizens’ consent beforehand. The whistleblower also violated Section 155 of the Criminal Code by keeping the confidential files of 89 citizens at home for a long period of time. Moreover, she had only been involved in half of the cases as a case handler.
The new Whistleblower Act could not lead to a different result, according to the prosecution. The assessment of the law leads to the same result as the assessment under Section 152e (2) of the Criminal Code, it said. The Supreme Court stated:
Section 7 of the new Whistleblower Protection Act, in brief, provides for immunity from prosecution if the whistleblower had reasonable grounds to believe that the disclosure was necessary to expose a violation.
As a result, we note that the woolly terms such as “necessary” and “of public interest” need explanation. Ultimately, it is the court that decides on necessity. Whistleblowers are therefore encouraged to report sensitive cases anonymously. In the Vivien case, several employees in the municipality had access to the cases. If the municipality had made it possible to report anonymously, Vivien would probably not have lost her job. If a higher-level body in the municipality had also set up an anonymous reporting channel, Vivien would have been better advised to report the cases there as well, anonymously by way of example. This would have increased the pressure on the authorities to reconsider the handling of cases and the whistleblower might have fulfilled her wish for justice without any harm.
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