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Whistleblowing and self-reporting
Are whistleblowers protected in your jurisdiction?
The first Swedish Whistleblowing Act came into force on 1 January 2017. The law does not oblige companies to have whistleblowing systems. It is instead aimed at protecting private-sector employees from employer reprisals when disclosing information about serious wrongdoings (ie, acts which may be punished by imprisonment). In order to be protected pursuant to the Whistleblowing Act, the employee must first have raised the concern internally without adequate response, or have been in a situation where it was for other reasons motivated to go public. Further, the protection does not apply where the whistleblower commits a crime by disclosing the information. The enhanced protection of whistleblowers in the act consists of a statutory liability to damages for an employer that exposes an employee to reprisals as a consequence of the employee raising the alarm.
As for public-sector employees, the Freedom of the Press Act (1949/105), which is part of the Swedish Constitution, establishes a fundamental right to communicate secret information to journalists, the media or news agencies with the purpose of publication. Since January 2017, this right also applies to employees of private companies running school, care and welfare institutions that are to some extent tax funded. If the employee chooses to criticise the company anonymously, the employer has no right to try to find out who was behind the information – there can be no investigation of who made use of their statutory right to communicate under the ‘protection for informants’ regime. Nor has the employer any right to hinder or punish the person who has spoken out. The employer has also no right to reprimand in any way anyone who publicises wrongdoings. Further, if the whistleblower claims that he or she has been retaliated against, the burden of proof to show that this did not occur will fall on the employer.
The media outlet receiving the information is obliged to protect the identity of informants. Public authorities or agencies are legally prevented from trying to find out who the informant was or to punish him or her in any way. However, the anonymity of informants and their freedom of responsibility do not apply if the person providing the information:
•commits severe crimes against national security or the state;
•intentionally discloses classified official documents for publication; or
•breaches duties of confidentiality specifically mentioned in Chapter 16 of the Public Access to Information and Secrecy Act (2009/400).
A complex system of exemptions is formulated to protect some values that legislature considers more important than the right to information.
Processing data about possible criminal offences may conflict with Article 10 of the EU General Data Protection Regulation, which prohibits private entities from processing such data unless permitted pursuant to national law. In Sweden, the Data Protection Agency, which has been authorised by the government to issue relevant national rules, has taken a very restrictive stance in this regard. Pursuant to the Data Inspection Agency’s Regulation DIFS 2018:2, processing data concerning possible criminal offences in a whistleblower system requires that this is necessary for investigating whether someone in a leading position or key employees may have been involved in serious misdeeds concerning bookkeeping, internal bookkeeping controls, auditing, bribery, criminality within banking of finance business, or other serious wrongdoings which concern the vital interests of the organisation or the life or health of individuals.
Is it common for leniency to be shown to organisations that self-report and/or cooperate with authorities? If so, what process must be followed?
No, there is no leniency mechanism provided for by Swedish law. In general, leniency is not part of the Swedish legal system, competition law being the main exception. However, when the court decides on the level of corporate fines for crimes of corruption, the fines may be set lower if the concerned company has acted to prevent the damaging effects of the crime or reported the crime voluntarily.
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