Can an employee go directly to the media?
Yes - in some situations.
But not always.
EU Whistleblowing Directive, EU Directive (EU) 2019/1937, provides protection for people who report breaches of EU law. The protection covers not only internal and external reporting - but also disclosure, which in practice can mean going to the media.
The question is under what conditions.
Three levels of reporting
The Directive is based on a three-step structure:
Internal reporting - within the organization
External reporting - to the competent authority
Publication - for example to the media
Protection is strongest for internal and external reporting. Disclosure is possible - but only under certain conditions.
When is it allowed to go directly to the media?
An employee may be covered by disclosure protection if one of the following applies
The person has first reported internally and/or externally without appropriate action being taken within a reasonable time.
there are reasonable grounds to believe that the infringement involves an imminent or manifest danger to the public interest.
There is a risk of retaliation or destruction of evidence if reporting is done through internal or external channels.
What matters is that the person had reasonable grounds to believe that the information was accurate and that the conditions for publication were met.
The motive behind the publication is in principle irrelevant. What matters is whether the criteria are met.
How does this relate to the duty of loyalty?
An employment relationship is based on a fundamental duty of loyalty.
At its core, the duty of loyalty means that the employee must:
defend the interests of the employer
not harm the business
not spreading harmful information without proper justification
In many situations, going directly to the media can be perceived as a breach of this duty of loyalty.
But the Whistleblowing Directive means that the duty of loyalty is not absolute.
When the specified criteria are met, the protection of public interest reporting outweighs the employer's interest in internal control over information.
This does not mean that the duty of loyalty disappears.
This means that it has to be balanced against the right to raise the alarm about serious breaches.
What happens if the criteria are not met?
If an employee goes directly to the media without meeting the conditions of the Directive, he or she may be left without the specific protection provided by the Directive.
In such a situation, the general duty of loyalty in the employment relationship comes into play again.
It is not the case that an employee is always protected just because information is provided to the media. The protection is conditional.
Executive summary
Can an employee go directly to the media?
Yes - but only if:
there are reasonable grounds to believe that the information is accurate; and
the conditions for publication under the Directive are met.
The Whistleblowing Directive creates an opportunity to break the silence when the public interest requires it.
But it is not a general right to override the duty of loyalty in the employment contract.