Protection of the Whistleblower Act (Cap 527)
In September 2013, the Maltese government implemented the Protection of the Whistleblower Act, 2013: an act to make provision for procedures that provide protection to persons who report improper practices and wrongdoings at the workplace, in both the private sector and the public administration.
Anyone who wants to raise the alarm on an act of corruption or illegality can do so safely within the Whistleblower Act, a law that should also lead to a change in mentality. By the implementation of this legislation the citizens are given the right to report abuses, knowing they will be protected by law.
Internal Reporting
Reporting persons have so far been able to report wrongdoings to an internal officer who will refer the report for further follow-up while retaining the identity of the reporting person in strict confidentiality. The reporting person will remain anonymous and therefore protected from retaliation at the workplace.
For employees in the Public Sector an Internal Whistleblowing Officer has been appointed in every government ministry to receive reports within the concerned department.
Employers in the private sector with more than 50 workers is to establish its internal reporting channels.
External Reporting
If no such internal channel is in place, or the report is not investigated effectively, the reporting person may report externally to one of the competent authorities mentioned in the law. These include: the Commissioner of Revenue (CfR), Financial Intelligence Analysis Unit (FIAU), Malta Financial Services Authority (MFSA), Commissioner for Voluntary Organisation (CVO), Permanent Commission Against Corruption and the Ombudsman.
For Public Sector employees External Whistleblowing Officer has been appointed within the Cabinet Office.
Transposition of Directive (EU) 2019/1937 on the protection of persons who report breaches of Union Law.
At European level the protection of whistleblowers was considered uneven and fragmented. As a consequence whistleblowers were often discouraged from reporting their concerns for fear of retaliation.
For these reasons, on 23 April 2018, the European Commission presented a package of initiatives including a Proposal for Directive on the protection of persons reporting on breaches of Union law and a Communication, establishing a comprehensive legal framework for whistleblower protection for safeguarding the public interest at European level, setting up easily accessible reporting channels, underlining the obligation to maintain confidentiality and the prohibition of retaliation against whistleblowers and establishing targeted measures of protection.
The Directive - (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law - was adopted on 23 October 2019 and entered into force on 16 December 2019. The Directive is online on the following link: EUR-Lex - 32019L1937 - EN - EUR-Lex (europa.eu)
During 2020 and 2021 the Ministry for Justice undertook the exercise of transposing Directive (EU) 2019 on on the protection of persons who report breaches of Union Law. This has led to the amendment of the Protection of the Whistleblower Act (CAP 527 of the Laws of Malta).
Main changes between former Act and Directive
Much of the provisions of the Protection of the Whistleblower Act remain unchanged. However, there are a few substantial changes here highlighted:
Protection now extends to “facilitators” or persons who assist the whistleblower in approaching internal reporting channels to make a disclosure
The definition of “employee” now also includes shareholders and persons who are in a pre-contractual relationship with the employer
The wrongdoings that can be reported fall under specific categories: public procurement; financial services, products and markets, and prevention of money laundering and terrorist financing; product safety and compliance; transport safety; protection of the environment; radiation protection and nuclear safety; food and feed safety, animal health and welfare; public health; consumer protection; protection of privacy and personal data, and security of network and information systems.
The definition of retaliation includes a number of actions ranging from dismissals to unjust referrals.
“Work-related context” clarifies that both past activities and current activities can be mentioned in a disclosure
Record keeping will be an added obligation on all employers within both the private and public sectors. Reports shall be stored for no longer than it is necessary and proportionate in compliance with the requirements imposed by this Directive, or other requirements imposed by Union or national law, such as the GDPR.
Public Disclosures are an added layer of reporting added to the law. A public disclosure refers to a person disclosing information and making it available in the public domain, such as placing it on the internet. This means that the reporting person would be able to forego the initial two stages of reporting in order to make a public disclosure, if: there is a risk of retaliation from External Disclosure; or there is an imminent or manifest danger to the public interest.