Protected Disclosures Workshop for Journalists

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  • Take a look at these different news reviews.
  • Whistle-blowing itself is often the story!
  • Green Hornet is a A user-friendly plug-and-play toolkit for African journalists to protect whistleblowers, and sources in collaboration with the Tor Project and Al Jazeera.Apply this later when we are thinking through open data.
  • Write these all up on flip chart paper. 10 minutes.
  • You must look to historical influences; all contributive – think back to the culture of secrecy in access to information.
  • Subtle forms of discrimination are often the most painful for a whistleblower.
  • Can make an anonymous disclosure, but will decrease capacity for a good follow-up.
  • Advice that they go accompanied with union organiser as legal representation.
  • This is the avenue you can provide advice on!
  • Talk to Nanou example.
  • You’ll need to consider the reasonableness if advising whether or not to report first.
  • Protected Disclosures Workshop for Journalists

    1. 1. The Protected Disclosures Act: How to advise By Gabriella Razzano Middelburg: 19 October
    2. 2. Introductions3 words: what are your interests for the next 2 days?
    3. 3. ODAC is a specialist law centre working in the areas of access to information, open data and whistle blowing. We provide legal advice and We also provide training on support to access public and effective implementation of private information throughPAIA, the PDA and open data the Promotion of Access to issues. Information Act (PAIA). We support and provide legal advice to bona fide whistleblowers using the Protected Disclosures Act (PDA).
    4. 4. Whistle-blowing:(a) Bringing an activity to a sharp conclusion as if by the blast of awhistle (Oxford English Dictionary); (b) Raising a concern aboutmalpractice within an organisation or through an independentstructure associated with it (UK Committee on Standards in PublicLife); (c ) Giving information (usually to the authorities) about illegal orunderhand practices (Chambers Dictionary); (d) Exposing to thepress a malpractice or cover-up in a business or government office(US, Brewers Dictionary); (e) (origins) Police officer summoningpublic help to apprehend a criminal; referee stopping play after a foulin football.
    5. 5. Graphic from APSJournalists and whistleblowers = you areoften the whistleblowers means for disclosinginformation.
    6. 6. Costs and similarities?Lives lost & livelihoods destroyedMillions in fines, compensation & insuranceCrisis managementJobs lost & reputations ruinedLoss of confidence - public & investorsIncreased regulation
    7. 7. Circumstances ? TragedyThe official inquiries into all these disasters showed thatthe staff had been aware of the danger before theaccident but had either:(a) Been too scared to raise the alarm(b) Had raised the matter in the wrong way or with the wrongpeople
    8. 8. Department knew about death trap factory (Mail & Guardian, 24 Nov 2000) Witch-hunt for whistleblowers (Mail & Guardian, 15 Mar 2002) Minister on warpath after AIDS report leak (Star, 21 Mar 2002) Arms deal leak: who blew the whistle? (Mail & Guardian, 21 Mar 2002)Culture of silence keeps sodomy under wraps (IOL, 18 June 2002) Sex slaves, drugs and video tape (Star, 18 June 2002) Burn the evidence or your job’s on the line (Star, 20 June 2002)
    9. 9. Enron, WorldCom, Tyco Phar-Mor, Regal, Barrings, Beige Leisurenet, Lenasia, Groetvlei, ZZZZ Best, (and all the rest) The question is, whose next?©ODAC 2001www.opendemocracy.org.za
    10. 10. Globally• Wikileaks…but what of source protection?• Rise of whistleblowing-to-journalists facilities e.g. Open Leaks, Green Hornet• Leaks and the future of journalism: “The task of aggregating and verifying multiple sources and data depends fundamentally on trust. Trust that the facts are accurate. Trust that appropriate weight has been given to context. And, make no mistake, ladies and gentleman, trust in the journalistic profession is a scarce commodity”. Lionel Barber• Actually about journalism and rise of internet.
    11. 11. No-one else can be bothered?Nothing will be done I don‟t want to be a sneak It‟ll only cause trouble It‟s only a suspicion Why not just keep quiet? Worried by mbtphoto (Flikr)
    12. 12. I’m worried about telling my manager:• What if I am required to prove it?• How far up does it go?• What if I am wrong?
    13. 13. Who?How?What will they do?What if I‟m foundout?
    14. 14. Break into groups of 4 or 5 For report back, list 3 key reasonsyou have seen in your environmentwhich might mean people won‟t blow the whistle?
    15. 15. The South African experienceTransition to democratic rule characterised by High levels of crime - including widespread corruption Whistleblowers viewed as ‘impimpis’ or informants Leading to initiatives to promote transparency and fight corruption including the Promotion of Access to Information Act 2000 and the Protected Disclosures Act 2000
    16. 16. The Protected Disclosures Act 2000
    17. 17. Aims:The new law aims to provide a statutory framework which Reassures workers with genuine concerns that there is a safe alternative to silence Promotes better accountability Makes risk management an issue for all staff and managers Helps everyone separate the message from the messenger
    18. 18. Applies to every employer and protects every employeeWide definition of wrongdoingProvides for financial (and other) compensationCovers malpractice or “impropriety” which occurs outside the Republic ofSouth AfricaAllows disclosures of impropriety to person other than employer Image from The University of Iowa Libraries
    19. 19. Detriment or dismissal automatically unfairOnce you show the detriment, the employer would then have to provide evidence that this was fair or they will lose in the CCMA...
    20. 20. Who’s an employee? (a) any person, excluding an independent contractor, who works for another person or for the State and who receives or is entitled to receive, any remuneration; (b) any other person who in any manner assists in carrying on or conducting the business of an employer.Worker by Photo by Agus Andrianto/CIFOR on Flicker Service providers and independent contractors are not covered by the PDA. However, the definition is far broader under the new Companies Act section 159(4). In sub-section 4 of s159, the Companies Act extends the protections of the PDA to • a registered trade union that represents employees of the company or another representative of the employees of that company • a supplier of goods or services to a company
    21. 21. The Objectives of the PDA areto Protect an employee from being subjected to an “occupational detriment” on account of having made a “protected disclosure” Provide procedures for the disclosure of information regarding possible malpractice Prevent „gagging‟ of employees concerned about malpractice Create a workplace culture which facilitates the disclosure of information about malpractice
    22. 22. So...what do we mean by occupationaldetriment? Any disciplinary action - including dismissal, suspension, demotion, harassment or intimidation A transfer against the employee‟s will Alteration of terms / conditions of employment to employee‟s disadvantage...
    23. 23. Refusal of transfer or promotionRefusal to provide reference or providing adversereferenceRefusal of employment or appointment to officeThreatening the employee with any of the above
    24. 24. So...what would a disclosure be about? A criminal offence or miscarriage of justice A failure to comply with any legal obligation A danger to health & safety or damage to the environment Unfair discrimination The likelihood that any of the above is, has or may occur Deliberately concealing any of the above
    25. 25. By lawnborghini on FlickrThere are four main routes for legal protection….
    26. 26. The Four Doors to Legal Protection: Door 1(Clause 5)To a legal adviser for the purpose of, or in the courseof, obtaining legal advice.•Includes attorney, their shop steward or union organiser!
    27. 27. The Four Doors to Legal Protection: Door 2(Clause 6)In good faith, to the employer - and / or using a procedureauthorised by the employer, such as in a whistle-blowingpolicy...preferred first step
    28. 28. The Four Doors to Legal Protection: Door 3(Clause 8) In good faith, to a specified regulatory body (includes Public Protector and Auditor General)
    29. 29. The Four Doors to Legal Protection: Door 4 (Clause 7, 9) Exceptionally Fear of serious? occupational detriment? Likely cover-up? Wider disclosure such as to the media, made in good faith and not for personal gain : it must be reasonable.
    30. 30. Nobody‟s perfect…• Protective scope too small – Only those whistleblowers who release within a formal employment relationship – excluding all persons in other commercial relationships with the relevant organisation such as customers, independent contractors• Range of recipients too narrow – SAHRC? – PSAM?
    31. 31. Remedy issues:• Resolutions of disputes are court-based• It is only where an employer‟s retaliation prejudices an employee‟s labour rights that the PDA protection becomes available, and not before then;• The PDA provides no immunity against civil and criminal liability arising out of the disclosure;• There is no express obligation on organisations in terms of the PDA to protect a whistleblower‟s identity;• The remedies that are available are insufficient e.g. damages are limited to those damages in the Labour Relations Act.
    32. 32. Practical adviceWhat you need to know aboutgeneral protected disclosures
    33. 33. The 4th door: Wider disclosureThis protection applies where the whistle-blower honestly andreasonably believes that the information and any allegation contained init are substantially true and that the disclosure is not made for personalgain. Crucially, to be protected there must also be a good cause forgoing outside and the particular disclosure must be reasonable.
    34. 34. A good cause?Concerns the act of going outside the organisation.The four good causes1. the concern was raised internally or with a prescribed regulator, but has not been properly addressed2. the concern was not raised internally or with a prescribed regulator because the whistle-blower reasonably believed he or she would be victimised3. the concern was not raised internally because the whistle-blower reasonably believed a cover-up was likely and there was no prescribed regulator, or4. the concern was exceptionally serious.
    35. 35. Reasonableness?Concerns the disclosure itself.Possible factors include:• the identity of the person it was made to• the seriousness of the concern• whether the risk or danger remains• whether the disclosure breached a duty of confidence the employer owed a third party.• If raised with the employer or a prescribed regulator, the tribunal will also consider their response. It is not enough to have a whistle- blowing policy only – action taken must be appropriate.• Finally protection may be lost if the worker failed to comply with a whistle-blowing policy if available.
    36. 36. So key things to consider…• What is the companies whistleblower policy?• What are the conditions which prevent raising it internally? Is it worth trying this route first?• How reasonable is the concern?
    37. 37. RecourseA victim can refer a dispute to theCommission for Conciliation, Mediationand Arbitration for conciliation andthereafter to the Labour Court.Dismissal = unfair dismissalVictimisation = unfair labour practice
    38. 38. Those dismissed for making a protecteddisclosure can claim either compensation,up to a maximum amount of two yearssalary, or reinstatement.Those who are disadvantaged in someother way as a result of making aprotected disclosure can claimcompensation or ask the court for anyother appropriate order.
    39. 39. “Injustice anywhere is athreat to justice everywhere.” -Martin Luther King, Jr.

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