Criteria for protection under the Whistleblower Act

1) The information concerning the irregularity must have emerged in a work-related context. At KTH, this means related to KTH’s operations.

The term work-related context means a person’s present or previous employment in the private of public sector, and that the information concerning irregularities must have been acquired in that context. As such, the Act does not apply to reporting outside of a work-related context, i.e., reporting information that comes to someone’s attention of in their capacity as, for example, a customer, client, patient or student.

The Act covers irregularities consisting of any act or omission, regardless of whether it is intentional or the result of negligence, as well as irregularities resulting from circumstances for which no individual person can be blamed, such as accidents. An attempt to cover up an irregularity may itself constitute an irregularity within the scope of the Act.

Pursuant to Section 2 of Chapter 4 of the Whistleblower Act, the protection applies not only to the reporting of irregularities that have occurred but also to irregularities that will most likely occur.  

2) Disclosure of the irregularity must be in the public interest, or...

For disclosure to be in the public interest, the irregularity in question must be a matter of concern for a circle of people that can be defined as the general public. Hence the Act does not normally apply to reporting matters solely related to the reporting person’s own work or employment situation. In certain cases, however, reporting a matter that only affects the reporting person may be in the public interest, such as if the person is working in slave-like conditions or an employer is systematically breaching regulations with regard to the individual in question. It may also be the case that an irregularity related to a contract or other legal document that in the strictest sense only concerns the parties to the contract or those taking legal action also impacts the public if, for example, it involves corruption.

Over and above the irregularity being a matter of concern for a circle of people that can be defined as the general public, the public must have a legitimate interest in the irregularity being brought to light. General curiosity is not a legitimate interest. Nor does the fact that an organisation is a general source of interest to the public mean that the disclosure of an irregularity in its operations must be routinely considered to be in the public interest. On the other hand, as a general rule the public has a legitimate interest in an irregularity that has a negative impact on the public coming to light so that the matter can be rectified. It is therefore in the public interest for the operator or a public authority to become aware of the irregularity so that it can take measures to deal with it. The public may also have a legitimate interest in being informed about an irregularity so that people can take measures to protect themselves. The more frequent and systematic an irregularity is, the greater the societal interest in rectifying or ending it. 

Generally speaking, matters related to the branches that fall within the material scope of the EU Whistleblowing Directive are of importance to society at large and should, as a rule, be considered to be of public interest. These branches are: public procurement; financial services, products and markets, and the prevention of money laundering and terrorist financing; product safety and compliance; transport safety; environmental protection; radiation protection and nuclear safety; food and feed safety, animal health and welfare; public health; consumer protection; and the protection of privacy and personal data, and the security of network and information systems. Protection under the Act therefore normally extends to the reporting of irregularities related to these branches.

As a general rule, there is also a public interest in disclosing breaches of current regulations issued by the Riksdag, the Swedish Government or other public authorities. This also applies to breaches of binding EU regulations not covered in the previous paragraph. However, an exception may be made when the breach is negligible or relates to regulations of a purely formal nature.

The wrongful or unauthorised use of public assets is also covered, if the breach is not negligible. 

Normally, it is not possible to rely on disclosure being in the public interest unless the situation is serious.

 ... the irregularities consist of an act or omission that violates or counteracts the aim or purpose of a directly applicable legal act of the European Union within the material scope of the EU Whistleblowing Directive.

The Whistleblower Act also contains provisions concerning EU law. In this regard, the Act is dynamic in as much as any amendments to the Whistleblowing Directive or any legislation on one of the branches within the its scope may affect the scope of the Act.

The Whistleblowing Directive also covers breaches affecting the financial interests of the Union and breaches relating to the internal market, including breaches of Union competition and State aid rules.

The Whistleblower Act also covers irregularities consisting of any act or omission that breaches Swedish legislation to implement or supplement an EU legal act within the scope of application of the Whistleblowing Directive. This implies at that all implementing measures at national level taken in accordance with these legal acts are also covered. 

3) The reporting person must have reasonable cause to assume that the information concerning the irregularities is true

This provision implies that anyone knowingly reporting or making public false information is not entitled to protection.

The matter of whether, at the time of reporting, the reporting person had reasonable cause to assume that the information concerning the irregularities was true is determined by an objective assessment of the grounds the reporting person had at the time their report was made.

The Whistleblower Act offers no protection to someone reporting unfounded rumours or hearsay. That said, there is no requirement for the reporting person to provide actual proof of irregularities; however, there must be reasonable ground to believe that the information is true. Nor is there any requirement for the reporting person to conduct an investigation or checks to ensure that the information is true if such measures cannot be taken without difficulty.

When assessing whether there was reasonable cause to assume that the information concerning the irregularities was true, no significance is to be attached to the reporting person’s motives for reporting. 

4) The report is submitted in the manner and under the conditions prescribed in the Whistleblower Act.

The Whistleblower Act describes various ways to report:

• Internally via the internal reporting channel provided by the operator, or in some other way if the channel is unavailable.
• Externally to a competent authority via an external reporting channel, or directly to EU institutions, bodies or offices.
• Public disclosure, such via the mass media. However, protection under the Whistleblower Act only applies if the reporting person has first reported through an external reporting channel without the competent authority having taken reasonable follow-up measures in response to the report. Protection also applies if the reporting person has reasonable cause to assume that the irregularity constitutes an imminent or obvious danger to life, health or safety, or entails a risk of extensive damage to the environment, or, for other reasons, has justifiable cause to publicly disclose the information, or has reasonable cause to assume that reporting externally would entail a risk for retaliation or result in the irregularity not being effectively addressed.