Sweden - Whistleblowing Laws in Europe: An international guide

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1) Local Laws

a) Has the country implemented any laws / regulations on whistleblowing (Local Law)?

The Whistleblowing Act

In September 2021 Sweden passed its new Whistleblowing Act (Swedish Act (2021:890) on special protection against reprisals for workers who report irregularities), (the Local Law) to transpose the Whistleblower Directive (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). The Local Law stipulates that reporting persons are protected from retaliation from a business operator and those who are subjected to reprisals by a business operator in violation of the provisions in the Act are entitled to damages. The Act is binding for the benefit of the workers and does not restrict the protection that may apply on other grounds, for example according to labor law or the Swedish Constitution.

Following the new law from 2021, employers who have 50 or more employees must have internal whistleblower functions. The requirement to introduce whistleblower functions is mandatory and will be introduced gradually depending on the size of the business. Employers with more than 250 employees are required to implement internal reporting channels by 17 July 2022 at the latest, while employers with 50 to 249 employees have until December 2023.

The Swedish Constitution

The Swedish Constitution stipulates freedom of expression, defined as a freedom to communicate information in speech, writing or image or in any other way and to express thoughts, opinions and feelings. Freedom of expression applies to all individuals, i.e. also to employees.

For public employees, the Constitution also includes protection against the employer as the employer is considered a representative of the state. As a rule, an authority cannot intervene against an employee of the authority because they, by exercising their freedom of expression, have caused a disturbance in the authority's activities or damaged the authority's reputation and the public's trust in the authority.

Furthermore, the Swedish Freedom of the Press Ordinance and the Freedom of Expression Act contains supplementary provisions relating to certain types of freedom of expression. Whistleblowing protection is usually considered to be contained within the freedom of information, the freedom of acquisition, the right to anonymity, the prohibition of investigation and the prohibition of retaliation.

The European Convention on Human Rights (ECHR)

ECHR has been incorporated into Swedish law since 1995. The right to report irregularities is not specifically regulated in the ECHR. However, the European Court of Justice has interpreted the protection of whistleblowers to be incorporated in Article 10 of the ECHR (Freedom of Expression).

Labor Law

The protection of whistleblowers under labor law is built up of both laws and legal principles that have been developed through case law. Provisions on employee protection are found in the Employment Protection Act (1982:80) and employees enjoy a high level of employment protection. The most central provision in the Employment Protection Act is that employers must have just cause for dismissing an employee. Whistleblowers are also protected in the Swedish Act (2021:1890) on special protection against reprisals for workers who report irregularities as described above.

The Trade Secrets Act

The Trade Secrets Act (2018:558) contains provisions that limit the ability of employees and others to disclose company-specific information that constitutes a trade secret. The Trade Secrets Act can thus limit the possibility of reporting serious irregularities. The law contains, inter alia, penal and tort provisions in the event of unauthorized disclosures of trade secrets.

Sector-specific regulations

There are several EU regulations and national sector-specific regulations that contain provisions on the reporting of serious irregularities (e.g. in the area of financial markets and money laundering).

2) Scope of application

a) What types of wrongdoings are covered by the Local Law? Does it cover breaches of EU law?

The Local Law covers, just as previous Swedish Act on Whistleblowing, reports of serious irregularities, i.e. offences for which the range of penalties includes imprisonment, or comparable irregularities. Additionally, the Local Law also covers irregularities that are of such gravity that addressing them can be deemed to be of public interest. Examples of areas of public interest are public safety, consumer protection, public health and environmental protection etc.

The Local Law does not restrict the protection that may apply on other grounds. Whistleblowing in connection with breaches of certain sector-specific regulations is regulated in separate acts.

b) Personal scope

i. Does the Local Law apply to reporting persons working in both the private and public sectors?

The protection under the Local Law applies to employees working in both the private sector and public sector.

ii. Does the Local Law apply only to breaches that the reporting person became aware of in a work-related context?

Yes. The legislation does not only protect reports from employee's but also job applicants, volunteers, shareholders and other categories.

The Local Law does not apply when reporting information that has emerged outside a work-related context, e.g. reporting of information that someone has received in the role of customer, client, patient (regardless of whether the person is also e.g. an employee).

iii. Does the Local Law also protect: facilitators; people connected to the whistleblower and who could suffer retaliation in a work-related context; and legal entities the whistleblower owns, works for, or is otherwise connected with?

No, the Local Law does not extend to such facilitators.

c) Does the Local Law require specific conditions to protect reporting persons?

The reporting person must at the time of the report have reason to believe that the information reported is true. The reporting person must also follow the procedures for reporting, first through an internal or external reporting channel prior to making use of other channels, e.g. media.

3) Reporting channels

a) Does the Local Law allow anonymous reports? How are companies/agencies meant to handle them?

The Local Law does not require the employer to offer anonymous reporting. However, there are no legal obstacles as an employer to allow anonymous reporting and is to be recommended.

b) Is there a duty of confidentiality and any derogation from this duty?

Yes, an employer must guarantee confidentiality in terms of the identity of the whistleblower and the identity must not be disclosed to anyone beyond authorised staff without explicit consent. The identity of a whistleblower may only be disclosed where it is necessary and proportionate in the context of investigations by national authorities or judicial proceedings. Furthermore, the duty of confidentiality does not apply if the whistleblower has committed a criminal offence by reporting on the issue or if the individual did not have a reasonable cause to believe that the information reported was true.

In terms of the reporting person, the reporting person may not be held liable for breach of confidentiality, provided that he/she has had reasonable grounds to believe that the reporting of the information was necessary to expose the irregularity. However, a reporting person is not permitted to breach the so-called qualified duty of confidentiality according to the Public Access to Information and Secrecy Act, which restricts the right to disclose and publish information.

c) Public disclosures: does the Local Law provide for this possibility?

Yes, the Local Law provides protection for individuals that report irregularities to the media if the following criterias are met:

1. The individual has reported the irregularity through a external reporting channel and no reasonable follow up actions has been taken by the receiving party, or

a) no reasonable follow up actions has been taken by the receiving party, or

b) the receiving party has not within three months provided feedback to the whistleblower (if there are special reasons the deadline is 6 months, provided the whistlebower has been informed of the reasons for extending the deadline).

2. The whistleblower has a reasonable cause to believe that the irregularity can lead to a obvious danger to life and safety, or;

3. The whistleblower has a reasonable cause to believe that reporting through a external reporting channel could lead to reprimands or that the irregularity would not be remedied in a effective manner.

4) Reporting channels: internal

a) Is there an obligation for private and/or public legal entities to establish channels and procedures for internal reporting and follow-ups?

Yes, employers who have 50 or more employees must have internal reporting channels. Employers with more than 250 employees are required to implement internal reporting channels by 17 July 2022 at the latest, while employers with 50 to 249 employees have until December 2023.

A person who has reported irregularities through the reporting channel has the right to follow-up and feedback. The receipt of a report must, as a general rule, be confirmed within seven days to the reporting person, and feedback must be provided within three months of the receipt of the report being confirmed.

b) Do internal reporting channels need to allow reporting in writing, orally or both?

Yes, internal reporting channels must allow for reporting in writing, verbally or through a physical meeting if required by the whistleblower.

c) Procedures for internal reporting and follow-up: does the Local Law require legal entities to adopt internal reporting systems with the following elements?

i. Channels able to ensure the confidentiality of the identity of the reporting person and the protection of third parties mentioned in the report:

Yes, the internal reporting channel must ensure protection of the reporting person and the protection of third parties mentioned in the report.

ii. Acknowledgement of receipt of the report to the whistleblower within seven days of receipt:

Yes.

iii. The designation of an impartial function/team to manage follow-ups on reports and maintain communication with the whistleblower:

Yes.

iv. Any other follow-up requirements including those for anonymous complaints:

It is a requirement to provide the reporting person with follow-up on measures taken due to a complaint, and the reasons behind the measures, within three months of the acknowledgment of receipt of the complaint. If acknowledgement of receipt has not been provided and this is not due to the reporting person, then this feedback must be provided within seven days from the receipt.

v. A reasonable timeframe to provide feedback, not exceeding three months from acknowledgment of receipt or if no acknowledgement was sent, three months from the expiry of the seven-day period after a report is made:

Applicable.

vi. Providing clear and easily accessible information on internal reporting procedures and external reporting procedures to competent authorities and/or EU institutions/bodies:

Applicable.

vii. Should legal entities take any additional measures in order to comply with the above requirements?

In business operations where relevant, the business operator shall also provide clear and easily accessible information on what is prescribed in the Swedish Freedom of the Press Act and the Fundamental Law on Freedom of Expression. There must also be clear and easily accessible information about confidentiality of sources (Sw: efterforskningsförbud) and prohibition of reprisals (Sw: reprisalieförbud). Activities where it may be relevant are public activities or other activities where whistleblower protection applies in accordance with the Act (2017: 151) on whistleblower protection in certain individual activities or ch. Section 2 of the Public Access to Information and Secrecy Act (2009: 400).

5) Reporting channels: external

a) Has the country designated a competent authority to receive and investigate whistleblower disclosure and retaliation complaints?

A number of Swedish authorities have been given the competence to receive and investigate whistleblower complaints. For example the Swedish Financial Supervisory Authority (Finansinspektionen) is responsible for receiving reports on regulatory violations. The Swedish Work Environment Authority is responsible for the areas where no other authority is competent to receive and investigate whistleblower complaints and has also the responsibility to exercise supervision that employers have established internal reporting channels.

b) Is an independent and autonomous external reporting channel already established in the country?

Yes, several independent and autonomous external reporting channels have been established.

6) Processing of personal data

a) Is personal data concerning the reports processed in compliance with local and EU legislation such as EU Regulation 2018/1725 and local privacy laws?

The Local Law is a supplementary legislation to the GDPR.

7) Record keeping of reports

a) Is there any obligation regarding record keeping of reports as provided for by the EU Directive?

Yes.

8) Protection

a) Is there any difference between whistleblower protections in the private and public sectors?

Not any significant differences in terms of the protection offered.

b) Are whistleblowers protected against all forms of retaliation including threats and attempts of retaliation? Which forms of retaliation are expressly indicated?

The Local Law does not expressly state what qualifies as retaliation. According to legal doctrine, the Local Law protects against any action or omission on the part of the business operator which entails a disadvantage or unfavorable consequence for the whistleblower. The protection against retaliations includes also threat and attempts of retaliation.

The protection against retaliation is intended to cover both intrusive and less intrusive measures that are not protected by other regulations or in any case have no sanction for damages. For the protection to apply, there must be a direct causal connection between the reporting by the reporting person and the retaliation measure.

c) Does the Local Law provide for any other measures of support such as those indicated in the EU Directive?

The Local Law does not provide for any other measures of support.

d) Does the Local Law provide for the necessary measures to prohibit any form of retaliation against whistleblowers?

An employer who violates the Local Law is required to pay damages for the loss incurred and for the violation the reprisal entails. If legal action is taken on the basis of notice of termination or summary dismissal, or any other procedure covered by the Employment Protection Act (1982:80), compensation for losses in respect of the period following the cessation of employment may not, under any circumstances, exceed the amount specified in Section 39 of that Act.

e) Does the Local Law provide for any remedial measures, including interim relief measures?

No, the Local Law does not provide for such remedial measures.

f) Does the Local Law provide for exemptions from liability for whistleblowers?

Reporting persons shall not be held liable for reporting information covered by the obligation of professional secrecy if the reporting person had reasonable grounds to believe that the reporting of such information was necessary to reveal the misconduct. However, this does not apply for intentional breaches of confidentiality duties which under the Public Access to Information and Secrecy Act restricts the right to disclose and publish information under Swedish Freedom of the Press Act and the Fundamental Law on Freedom of Expression or breach of professional secrecy under the Defense Inventions Act. The exemption of liability also does not entail any right to release documents.

Reporting persons may also not be held liable for having obtained certain information which constitutes a breach of regulations, if the reporting person at the time of collection had reasonable grounds to assume that the collection of information was necessary to reveal the irregularity. However, this exemption from liability does not apply if the person, through the acquisition, commits a crime.

g) Does the Local Law provide for sanctions against natural and legal persons that violate whistleblowers’ protection or the duty of maintaining the confidentiality of their identity?

The Local Law only stipulates sanctions against legal persons that violate whistleblowers' protection. However, natural persons are forbidden following the Local Law to unauthorized disclose information that can disclose the identity of the reporting person or any third party connected to the matter.

h) Does the Local Law provide for sanctions in case of false reports?

No, the Local Law does not provide for such sanctions.

9) Other issues

a) Under the Local Law, is adopting a whistleblowing system relevant to assess the adequacy of a compliance program? Does this have any value to mitigate or eliminate criminal liability for legal entities?

No, this does not mitigate or eliminate criminal charges. However, it will be mandatory for most employers to adopt a whistleblowing system following the new Local Law.

b) Does the Local Law or another law in your country provide for whistleblower reward programs?

No such reward programs exist.

c) Can companies benefit from any incentives in the case of voluntary self-disclosure of violations they became aware of following an internal report?

No such incentives have been identified.

d) Will implementing the EU Directive create any issues with obligations provided for under other laws / regulations?

No such issues have been identified.


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