Public disclosure
Public disclosure means making information about breaches available to the public; it only protects whistleblowers from reprisals when narrow statutory conditions are met.
Under the German Whistleblower Protection Act (HinSchG), public disclosure means making information about breaches available to the public, for example to the press, on social media or by any other means reaching an indeterminate number of recipients. Disclosure sits at the end of the statutory tiered system: as a rule, whistleblowers should first use internal or external reporting channels. Only where these channels fail or appear futile from the outset can going public be exceptionally protected.
Protection against reprisals applies to a public disclosure only where the conditions of Section 32 HinSchG are satisfied. First, at the time of disclosure the whistleblower must have reasonable grounds to believe that the reported information is true. In addition, one of two alternative situations must exist: either the person previously made an external report and no appropriate follow-up measures were taken or no feedback was received within the statutory deadlines, or an exceptional case exists that justifies direct disclosure.
Immediate disclosure without a prior report is protected under Section 32(1) no. 2 HinSchG only where the person has reasonable grounds to believe that the breach may pose an imminent or manifest danger to the public interest, that reprisals are to be feared in the event of an external report, or that evidence could be suppressed or destroyed, that collusion between the reporting office and the wrongdoer could occur, or that investigations could be obstructed. Deliberately false disclosures are excluded from protection and may give rise to claims for damages and administrative fines.
Legal Basis
Section 32 HinSchG; Art. 15 EU Whistleblowing Directive (Directive (EU) 2019/1937)
Practical Example
An employee first reports an environmental breach to the federal external reporting office. After the three-month deadline expires she receives neither feedback nor any indication that follow-up measures have been initiated. She then turns to a daily newspaper. Because she had reasonable grounds to believe her information was correct and the external report remained ineffective, her disclosure is protected under Section 32 HinSchG; any employment-related reprisals by the employer would be unlawful. As a compliance officer, you should design internal and external channels effectively enough that a deadline-driven disclosure never becomes necessary in the first place.