Whistleblower Protection and the Right of Access

This brief addresses the contested relationship between an individual's right of access to his or her personal data under data protection law and the protection of a whistleblower's identity. Both rights turn out to be cornerstones in their relevant fields. Balancing said rights can be a challenging endeavour, in particular for corporations in practice as an improper balancing could lead to severe sanctions.

The right of access has become the most basic of all rights that an individual has under the General Data Protection Regulation (GDPR). An individual must be given proper access to his or her personal data in order to enable him or her to exercise control over that data and decide upon claiming further rights such as the right of rectification or the right of erasure. It is not surprising that the right of access has turned out to be contentious and it continues to be at the core of numerous European Court of Justice (ECJ) decisions.

The protection of whistleblowers has by now evolved into an equally important right. Whereas snitches had been frowned upon in several cultures for a long time, the crucial role of whistleblowers has been acknowledged by now under human rights law as well as prominently by the European Whistleblower Protection Directive. Probably the most essential right for the functioning of the whistleblower mechanism is the proper handling of the whistleblower's identity. The confidentiality of the whistleblower's identity is the foundation for the whole reporting system, as otherwise retaliation against the whistleblower is likely to follow.

However, there may be instances where the individual's right of access and the whistleblower's right to his or her protection collide. Balancing these rights can become extremely challenging for an employer when faced with following up on a whistleblower's allegations while the accused perpetrator claims access to all information on him or her and particularly the whistleblower's name. This brief describes the development of both rights and offers solutions as well as practical advice to the employer's quandary when it tries to comply with both data protection law and whistleblower protection.