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39 Law & Phil. 1 (2020)

handle is hein.journals/lwphil39 and id is 1 raw text is: Law and Philosophy (2020) 39: 1-34                       © The Author(s) 2019
https://doi.org/ 10.1007/s10982-019-09359-1
(Accepted 13 May 2019)
ABSTRACT. It is commonly stated, by both whistleblower protection laws and
political philosophers, that a breach of state secrecy by disclosing classified doc-
uments is justified if it serves the public interest. The problem with this defense of
justified whistleblowing, however, is that the operative term - the public interest -
is all too often left unclarified. This is problematic, because it leaves potential
whistleblowers without sufficient certainty that their disclosures will be covered
by the defense, leading many to err on the side of caution and remain silent,
depriving the public of much-needed information. Failing an agreed upon defini-
tion of the public interest or a process to determine it, judges' applications of the
public interest in whistleblowing cases have been criticized for demonstrating
'judicial idiosyncrasy'. The present paper, therefore, sets out to (1) provide some
clarity concerning the concept of the public interest, and (2) to ascertain the extent
to which a public interest defense for whistleblowing is feasible and desirable.
Contemporary liberal democracies recognize the importance of cit-
izens having access to government information. Transparency is of
fundamental importance for an informed public debate as well as for
democratic accountability, which is why many countries have free-
dom of information laws. Nonetheless, few support Julian Assange's
call for complete transparency and his rejection of legitimate secrets.
Even NGOs promoting transparency such as Transparency Inter-
national are prepared to allow for exceptions when national security
and official secrets are involved.' At times, it is necessary and
1 Mark Worth, Whistleblowing in Europe: Legal Protections for Whistleblowers in the EU. (Transparency
International, 2013), p. 89. Available at: https://www.transparency.org/whatwedo/publication/

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