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- 1. The protection of whistleblower: Key elements, the international debate and good practices
- 2. UNCAC Review Findings Nearly 75% of all reviewed countries receive a recommendation to consider strengthen whistleblower protection. Every second of them also raises technical assistance needs.
- 3. UNCAC: Establishment of protection mechanisms Article 32: Witness Take appropriate measures to provide effective protection from potential retaliation or intimidation for witnesses, experts and victims insofar as they are witnesses, who give testimony concerning corruption offences and, as appropriate for their relatives and other persons close to them. Article 33: Reporting person Consider measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning corruption offences. Article 37, para 4: Provide for cooperating offenders protection as foreseen under article 32.
- 4. Facilitation of reports Article 13, para. 2: Civil society Provide access to anti-corruption bodies for reporting by the public of corruption incidents, including anonymously. Article 8, para.4: Conduct of public officials Consider establishing measures and systems to facilitate reporting by public officials of acts of corruption to appropriate authorities, when such acts come to their notice in the performance of their functions. Relevant provisions of Chapter II (under review in the second review cycle) Article 12 Private Sector
- 6. Who is a whistleblower? Most widley used acedemic definition (Near and Miceli 1985): Focus on the specific nature of information held by “insiders” who might become aware of risks/wrongdoing early (helping to prevent damage) or n provide valuable leads for investigators. Due to their employment situation they might face specific challenges (contractual confidentiality obligations, loyalty concerns) and retaliation (dismissal, demotion, etc.) Disclosure by organisation members (former or current) of illegal, immoral or illegitimate practices under the control of their employers to persons or organisations who effect action.
- 7. The first dedicated laws also focus on the employment relation: Who is a whistleblower? UNITED STATES: Whistleblower Protection Act (1989) as amended; Complemented by multiple other sector specific laws; Sarbanes-Oxley Act (2002) & the Dodd Frank Act (2010). UNITED KINGDOM: Public Interest Disclosure Act (1998) AUSTRALIA: Different laws at State level from 1993 onwards Since then steady increase of legislation (with variations in scope). For example: South Africa, Japan, Canada, Korea, Serbia, Ireland, Tanzania, Netherlands, Sweden Ohter countries have provisions in different laws: Sectoral laws (anti-corruption, competitoin laws, environmental laws, employment laws, securities laws etc.); Labour Law; Public servants laws; Criminal Codes. Trend towards dedicated laws. Most laws also focus on the workplace relation.
- 8. Collaborating offenders Witnesses Police informants Whistleblower Citizen, service users, Complainants? Hackers ? Importance to distinguish, even though some overlaps/double roles are possible. Dynamic discussion at global level. Reporting: Who are the sources of information?
- 9. • (Arguably) best current practice: Wide workplace related definition, which should include all kinds of employees (e.g. temporary, full-time), individual contractors and consultant etc. both in the public and private sector, including NGOs/social services. • Terminology: Specific terminology varies (bell-ringer, flag waver, whistleblower etc.) Who is a whistleblower?
- 10. # Witness protection Whistleblower protection 1 Witnesses and collaborating offenders (incl. victims and experts) reporting and/or providing testimony on alleged criminal offences (of a certain severity) Broader focus on persons who report alleged criminal offences, breaches of administrative or other regulations as well as matters of public interest. 2 Once person is in contact with law enforcement and prosecution before, during and after criminal procedures. Includes protective measures – focused on workplace protection - for persons who report information to designated persons or authorities, including: a) internal reporting (e.g. to the employer), b) reporting to regulators or law enforcement authorities, c) external to the public/media, in exceptional cases. 3 Focused primarily on procedural and physical protection measures (before, during and after the criminal trial) to assure testimony in court. Primarily focused on work-place protection (including confidentiality) through various measures. 4 Responsibility of the law enforcement officers working on the case, the prosecutor and judge. In case of need, involvement of a specialised central witness protection programme/unit. Depending on the reporting channel, the responsibility for procedural protection lies with the receiving authority. The protection against retaliation depends on the legal and institutional framework. Most commonly through Labour Courts, but interim protection sometimes though a designated authority. Key differences with Witness Protection
- 11. Good practice: • Wide definition, including - Criminal offences, breaches of legal obligations, danger to health and safety of a person or the public, damage to the environment. • Acts that happened, are happening or likely to happen. Normally not included: Personal grievances (those would fall under other laws or regulations). Some countries also exclude minor cases / establish a threshold of seriousness. Reports about which topics are protected?
- 12. Disadvantages of a limited definition? • A case might start with the breach of an environmental regulation (not as a report of criminal conduct), but might lead to the discovery of an organised crime group or corruption E.g. Brazil Meat-Packing Case https://www.reuters.com/article/us-brazil-corruption-food- whistleblower/whistleblower-in-brazil-meat-scandal-takes-on-powerful-industry-idUSKBN16V2FO?il=0 • A case might not be criminal but should should still be reported without fear of retaliation. E.g. a building inspector is sloppy and signs off a big building (hotel, factory or similar) without conducting all required checks about statistics or safety standards. There is thus a high risk that the building might collapse or that there are not enough sprinklers etc. Should his younger colleagues report him and should he be protected from work-place retaliation? Reports about which topics are protected?
- 13. No universal defintion of whistleblowing or whistleblower • No international or regional Convention on Whistleblower Protection (yet), but some standards (Council of Europe Recommendations). • Draft EU directive on whistleblower protection. • Draft HLP of G20 Anti-Corruption Working Group. United Nations Convention against Corruption - Included the notion of whistleblowing in Article 33 of UNCAC - Focus on reporting of corruption and not on reporting of all types of crime and violations of laws or regulations. This focus is logical, but should not be understood as requiring States to limite whistleblower protection to reports of corruption. International standards?
- 14. II. MEASURES
- 15. Anonymity: No one knows the identity of the reporting person. (Some persons might have valuable knowledge, but only want to report anonymously. Information might be mistrusted more by recipients) Protection not possible since not clear who the person is. Later identification might not help and enable protection. Risk: False sense of security. Admissibility of evidence might be a challenge in court Confidentiality: The person/authority that receives the report knows the identity but protects it (keeps it confidential). If the case went to trial, a judge would decide on the procedural measures and balance the need for protection against the rights of the defendant. Public trust in the person/authority needed (can be built if the authorities establish these procedures. Designated officers safe the identifying information in a secure place and also keep it secure when collaborating with other agencies on the case) No either/or decision. New technology allows two-way communication even if the person is not identified and might solve some issues. Anonymous or confidential reporting?
- 16. What does good faith mean? Legislation varies. - E.g. Ireland has not included the element of good faith in its law and there is increased advocacy to delete this aspect from whistleblower protection laws. The focus should be on “an honest belief, on reasonable grounds, that the information disclosed is true” and no additional consideration of the motive as long as this is fulfilled. - Focus on the reported matter not the motive for reporting. Vague terminology about good faith or the motive could have a chilling effect. - (Motive might only become an issue if the whistleblower is made a key witness in a criminal trial.) Reporting in good faith?
- 17. Who to report to? reporting channels Internal (within public or private organisation) Regulators/Law enforcement bodies (receiving reports from various sources) External/Public Reporting? (General public, media CSOs) To the direct supervisor/employer To a designated staff member (internal auditor or ombudsman) if organisation is big enough Human rights jurisprudence: Where other channels did not or could not reasonably be expected to function properly Balance of different interests External reporting as an alternative. E.g. to regulators and law enforcement authorities (anti-corruption commission, environmental agencies etc.) Provide employees with information where to report!
- 18. When is external whistleblowing (e.g. to the media) protected? Protection under specific circumstances (e.g. according to human rights jurisprudence). Aspects to consider: - Do alternative reporting channels exist? - Could the reporting mechanism reasonably be expected to function or not? - Has the whistleblower already made the same disclosure internally but has been ignored? - Does the information concern a matter of public interest? How urgent is the matter? - Does the importance of the public disclosure outweigh the detriment suffered by the employer? Case example: Collins v. National Trust (ET Case 2507255/05)
- 19. Aspects to consider in regard to public reporting: • Disclosure to the media may also alert the subject of the disclosure to the fact that their conduct has come under suspicion, and enable them to destroy evidence, interfere with potential witnesses, or evade investigation. • It can be helpful to provide whistleblowers with advise (e.g. on a website or through a specific organization) on the different considerations and jurisprudence. • How does the recipients handle the information? Investigative journalists? NGOs?
- 20. Whistleblowing and Freedom of Expression
- 21. Human rights in practice 1) Int. Human Rights Standards e.g. UDHR, International Covenant on Civil and Political Rights, ECHR & ECtHR 2) Domestic Laws and Courts Up to Constitution & Constitutional Courts Domestic law and international standards. [E.g. in Europe, additional system with European Court of Human Rights (ECtHR)]
- 22. Balance of rights Standard three-part test of Human Rights law Article 13 of UNCAC refers to Int. Human Rights Standards Article 19 of the UDHR and ICCPR Art 19 (2) Art19 (3) Sources: E.g. UNODC, Reporting on Corruption – A Resource Tool for Governments and Journalists http://www.unodc.org/documents/corruption/Publications/2014/13-87497_Ebook.pdf
- 23. Question of proportionality • All of this would depend on the exact circumstances of the case before the court. • The harm caused by the disclosure. • Whether the public interest value in the expression outweighed the harm caused. • The stronger the public interest value and the weaker the harm caused – the more likely the court would find in favour of the applicants freedom of expression. Art 19 (2) Art 19 (3)
- 24. Diligent handling of reports by the recipients • Make reporting easy! Importance of the first response! • Establish clear policies & procedures - who is responsible for what? (Role of first recipient and investigator) • Standardization (forms, questions and procedures) • Responsibilities and Inter-agency cooperation • Follow-up / Who keeps the whistleblower informed about progress? • Data collection and intelligence • Independent legal advice (NGOs, lawyers, other?) To make whistleblowing work, more is needed than just a law!
- 25. Provision of a range of protective measures • Confidentiality • Penalties for retaliation • “Reversal of the burden of proof” that the retaliation happened due to the whistelblowing • Protection against civil or criminal liability • Repeal of retaliatory measures and compensation for damages • Interim relief • Rewards (percentage of recovered amount or court penalty) • Physical protection (in some laws. See discussion about witness protection)
- 26. • Who provides protection in case of retaliation? • Separate authority than the authorities that receives reports or protection only through labour law courts? • What powers does the authority have to protect? Institutional framework for the protection
- 27. Responsibilities and enforcement mechanisms to protect whistleblowers against reprisals Persons/authorities who receive reports & investigators: Should provide procedural protection (e.g. confidentiality measures during the investigation, follow-up) Employment tribunal (UK) The most common form of enforcement is through the employment tribunals if a whistleblower was retaliated in the workplace. Specialised authority (e.g. Korea). In Korea a special separate and independent unit of one of the investigating authorities (the Anti- Corruption and Civil Rights Commission) can take some measures if a whistleblower was retaliated against (e.g. order to employer to reinstate the person as interim measure during trial, provision of some financial support). Advice: Depending on the national system, e.g. advice might be provided by NGOS, law firms, the specialised authority or others
- 28. Rewards ? Countries have different opinions if reporting should be rewarded or seen as a moral obligation. If reward system is chosen, then mostly as a percentage of the recovered assets or fine (Pro: Seems to increase reports / Challenge: might take years and not all cases would be covered).
- 29. Main outcomes of the needs assessments • No dedicated law in most of the countries Many countries have one law or some provisions inside an broader anti-corruption law for the protection of reporting persons Confusion between witness protection and whistleblowing protection
- 30. Main outcomes of the needs assessments • No internal mechanism in place Most of the countries only have a dedicated hotline for all reports that is handled by the Anti-Corruption Authority_ But no specific internal reporting mechanisms nor policy on where a whistleblower could go at which stage. No or few compliance systems in the private sector or internal policies for disclosure
- 31. Main outcomes of the needs assessments • Anymously/confidentiality is still facing issues Most of the countries indicated having challenges and technical assistance needs with regard the respect of confidentiality. That can require some technology, training and policies that they don’t yet have in place. Perceived as against the right of someone who is accused to know his accuser
- 32. Main outcomes of the needs assessments • No facilitation in front of the Labour Tribunal The link between report and retaliatory act is not always done and the Labour Tribunal does not necessarily establish a presumption that an action has been taken as retaliation to a report. No reverse burden of proof
- 33. Main outcomes of the needs assessments • Contradiction with the Business secrecy principle Some countries consider business secrecy as fundamental. The whistleblower is then seen as a traitor and risk prosecution for non-respect of confidentiality principle included in his employement contract business secrecy ends where legal liability begins
- 34. Louise PORTAS Crime Prevention and Criminal Justice Officer Implementation Support Section Corruption and Economic Crime Branch UNODC, Vienna
Editor's Notes
- Key elements, the international debate and good practices to be considered to inform Policy decisions in Mexico
- Make clear that the ideal situation would be that the Whistleblower would not need to be present in the court case. However, make also clear why this might not always be possible (balance with rights of the defendent, whistleblower needed as additional witness in trial, through his conduct or conduct of others the identity becomes known). The key article for the protection of reporting persons outside of formal witness protection programmes is article 33. It deals with the protection of any person who reports in good faith and on reasonable grounds to the competent authoriteis any facts concerning corruption offences. In the same way as many international conventions are formulated, the article is not too detailed and uses broad terminology to accommodate the diversity of legal systems and institutional frameworks in different countries. The Convention does not use the term whistleblower, but « …person who reports… « . (Will be discussed in more detail later)
- Highlight that this issue will be reviewed again during the second cycle of the review mechanism (though with a focus on the public sector). In the first review that was conducted so far (Lichtenstein) the whistleblowing system was mentioned. Article 12 does not mention reporting systems specifically but talks about integrity and accountability more broadly. So it could also be discussed in regard to private sector measures.
- First discussions came from Ralph Nader and Near and Miceli from the Consumer Protection Side and Organisational Development Side. The range of retaliation is very broad once you start looking into different whistleblower cases. As a law enforcement agency and as any regulator (such as Food Hygiene, Airport safety, Building security) you can not have your eyes and ears everywhere and control everyone all the time. Similarly as an employer, in a ministry, hospital, bank, or company you can not check each and everyones activities, but need to trust that your staff respects the laws, does not cause you or your clients massive risks and liabilities and does not, for instance, steal from you. In both cases, it is necessary to rely on a « delegated » system of control and reporting. So you need to make sure that people report their concerns and suspicions.
- Private sector focused laws less common but in some countries the private sector neverthelss implements policies and e.g. in particular for listed companies as part of due diligence. The countires that don’t have dedicated laws, might in some cases have relatively comprehensive legislation, but this is rare. AND it must be acknowledged that there is, as of yet, no agreed global standard. I will get to this point later. In various assessments and reviews, civil society and others pointed towards risks of fragmented legislation. Risks in the implementation such as incoherent rulings by courts, confusion for reporting persons, etc. Also in UNCAC reviews, there was a slight tendency to recommend comprehensive legislation if laws were fragmented in order to counteract inefficiency or other possible challenges. The few laws which are broader are often in countries that anyhow have big implementation challenges. Even in advanced countries challenges remain.
- Citizens reporting mechanisms are different. They neither have the same confidentiality challenges nor the work-place related retaliation risk. As regards physical protection that is anyhow a different discussion and normally more linked to criminal investigations. It is too much to cover this today, but UNODC has some expertise in this area. Make clear that the ideal situation would be that the Whistleblower would not need to be present in the court case. However, make also clear why this might not always be possible (balance with rights of the defendent, whistleblower needed as additional witness in trial, through his conduct or conduct of others the identity becomes known). Again – some countries mix the concepts into one law which, from my point of view, does not seem conducive. Those are mostly countries where the implementation is extremely limited (similar to cases where a country includes reporting by any person). There are discussions to expand the scope of persons, but there are so far no real good examples which go beyond a “broad work-place related definition” which would also include contractors, consultants, etc. Discuss challenges of wider approaches. If everyone protected? From what? What type of information do you get? Is a different process justified. E.g. US State of Florida – one approach which has managerial considerations in mind. Focus for instance on gross fraud or mismanagement. This means only persons who report cases of a certain gravitas receive whistleblower status. The reason is the added procedural burden. Transcribing in a way that takes out any identifying information, etc. Too much to go into all details here.
- Some newer laws go wider and include “anyone … or any citizen” who reports, next to employees. However, this might render EVERY report into a whistleblower report requiring special procedures. Which reports are then still “normal” reports of corruption or crime? In the US whistleblowing reports need to reach a specific threshold of seriousness before they are considered whistleblowing reports (e.g. not petty theft or small scale cases, only cases with a serious risk of damage – e.g. reporting on toxic waste dump near public beach etc.) Employees, for instance, should be encouraged to report matters internally in case the employer has a system in place or to report to the regulator if there are reasons why internal reporting might not work (involvement of employer, non-responsiveness of employer, risk that evidence will get destroyed). If they get retaliated in the workplace, the law can provide some protection. The idea of whistleblower protection was that the fact that the person reports on matters related to his/her workplace, would open him up to specific retaliation (specific vulnerability). This logic does not apply to general citizen reporting. Other persons, would automatically go to the relevant authorities (regulator or law enforcement). Those authorities should also provide them with procedural protection e.g. protection of confidentiality, but the work place protection would not apply as they would not report any facts related to their work-based relationship but other matters. Normally regulators and law enforcement anyhow have reporting channels in place to receive reports on crime or risks, so the question is where the added benefit lies if the whistleblower law is formulated more broadly. So far this has not been analysed as this is a new development (e.g. in some African States).
- Korea is one of the best systems in the world. They started with a provision on whistleblowing in their AC Law, but at one point realised that the protection has to be expanded to other reporting. Now they have a broad whistleblower protection law next to some specific provisions for corruption (thought mainly same system). They might plan to merge the systems into one. Ireland example to make the terminology clear as lay person might not know what is in the public interest Pro-wide definition that does not focus on some crimes only: 1) Why should persons who blow the whistle on corruption be protected, but a nurse or flight engineer who reports about a serious health or safety risk not be protected? 2) It might not be easy for a person to distinguish if the conduct relates to alleged tax evasion, disciplinary issues, corruption, theft or another offence. Don’t put the burden on the reporting person having to distinguish the type of offences or improper conduct. 3) Tip of the iceberg: Some cases might start with a report on a breach of some minor environmental regulation, but only once the investigation starts it might lead to a wider corruption or organised crime case e.g. if there is a collusion between companies or if the regulators received bribes to overlook misconduct. Would it be fair to protect a person who reports corruption but not the person who reports the breach of an environmental regulation? Counter arguments/considerations: I would advocate for a wide definition. However some countries such as Albania have adopted a law focusing on corruption and similar offences in the public sector. Also the bill of the Solomon Islands goes into this direction. If a country starts with the concept of whistleblower protection it could be an interim step, but normally it will lead towards wider protection as a subsequent step. Korea, which is by now one of the most advanced countries in this field, started with a provision on reporting in their anti-corruption law, then upgraded to a whistleblower law on corruption and similar and now had a wider law, which covers the breaches of several hundreds laws/regulations. At each interim step they discovered or where criticised that the system was not sufficient to address the realities whistleblowers face. Grievances – will relate to HR rules, protected by general employment rights, anti-discrimination laws or similar. #Metoo debate: Some now also call for inclusion of reports of sexual misconduct, which would normally be considered a personal grievance. This is one example of several showing that the debate what to include or not include in whistleblower protection is still very dynamic. One-stop reporting lines? E.g. including on sexual crime cases? Would it need specifically trained personnel? Different opinions exist!!!
- I list the Council of Europe Conventions as the Council of Ministers has provided numerous Recommendations on Whistleblower Protection. The latest being from 2014. OAS has a draft law, I think but possibly not anymore up to standard? OAS Convention?
- Not exlusive and all-encompassing, but focus on key measures
- It is no either/or decision. Confidential reporting is preferable. However, in order to leverage reports, States should also consider to have channels for anonymous reporting. Most states have this option for crime and other reporting anyway. Recipients and investigators prefer the first option, but New technology makes the distinction a bit less important. The most important is to stay in touch with the reporting person. (Limits: person can unwantedly provide information that gives them away or allows people to guess who provided information. Needs open discussion with target groups and stakeholders to manage understanding and expectations.) Ideally, the investigation gives enough evidence so that the WB does not need to be called upon as a witness in court, but not always possible. However, identity can be protected though different means. Include whistleblower as target in the primary investigation, call him/her as one of several witnesses without pointing out that the first information came from him/her, try to construct a parallel case. These are all Dos. Same as guidance for the first recipient which questions to ask. Whom have you talked to about this. Have you reported it elsewhere etc. Don’ts: Country case where an agency was responsible to receive reports for ports and all relevant agencies operating in the port micro-cosmos. Transferred reports to the agencies that were accused of corruption. This of course hampered very quickly any kind of reporting. Most whistleblower laws provide for the protection of the identity of the whistleblower. This is important in cases where the employee feels that there will be retaliation if they disclose information. The New Zealand Public Disclosure Act requires who receive protected disclosures use their best efforts not to disclose identifying information unless it is “essential to the effective investgation, essential to prevent risk to public health or public safetly, ore it is essential having regard to the principles of national justice. However, confidentiality may provide a false sense of security since there is likely only a small number of people in an organization who would be aware of the disclosed wrongdoings so it would not be difficult to identify them. Anonymity may be useful if not essential in some cases, such as in jurisdictions where the legal system is not so strong or there are concerns about physical harm or social ostricization. The reluctance to accept anonymous disclosures probably comes in part as an effort to make whistleblowing more socially acceptable and part of a normal work environment and because of concern regarding the use of secret informers as has been used in totalitarian regimes.
- I would suggest to discuss with the audience why the motif of the whistleblower should be irrelevant? It would mean: If I like my boss and realise he committed a crime and report him, I would be protected. If I hate my boss and realise that he committed a crime and I report him because I hope that he lands behind bars and loses his job, I would not be protected? Only challenging cases: If I participated in a crime, but think at one point that it gets out of hand and then report – I am a cooperating offender or crown witness. I still should be allowed to report (no matter the motif), but of course I would still be responsible for the crime I committed. The States might use measures as promoted in Article 37 which would allow to mitigate my punishment so that I come forward. And if I lose my job for committing the crime, I would not be protected. The protection is for the honest whistleblower to keep his job not for the whistleblower who committed a crime and then changes his mind. Article 37 addresses these measures. The focus should be on the concern not the person who reports it. If the matter is related to a crime or pubilc harm etc. it should be unimportant why the whistleblower reported the matter. It should be irrellevant if he is mean, crazy, or a saint. The information is needed. Only if he knew that the information he reported was wrong or reasonalby could not have believed that the information was true this would change. Norway and Ireland dont have the good faith requirement any longer at all in the law to further reduce any risk of misinterpretation (UK also?) A person who makes a false public interest disclosure, knowing it to be false, commits an act of misconduct or crime. Making an otherwise bona fide disclosure about wrongdoing in which the whistleblower was personally involved, in order to seek to escape the consequences, should be protected only in relation to any retaliation for making the disclosure, not for the misconduct itself. If the whistleblower is included in the trial, the prosecutor should try, for instance, to question him in the same way as any other witness and not reveal that this person actually STARTED the whole case. So it should remain confidential during the whole process who the whistleblower was. Also there is of course a need to find corroborating evidence to build a solid case. Knowingly reporting of false information or information that the whistleblower could not reasonably have believed to be true, is not protected. Many countries criminalize such cases of false reporting and the person might also face disciplinary penalties such as dismissal. Special case of cooperating offenders: A whistleblower who participated in the wrong-doing would be a cooperating offender. Though he should not be retaliated against for reporting (e.g. dismissal or liability for breaching confidentiality) he might still face disciplinary or criminal sanctions for the participation in the wrong-going. Depending on the gravity of the act such sanctions could reach dismissal or a criminal conviction. However, in order to incentivize the valuable information and testimonies of cooperating offenders, some countries allow for the possibility to grant immunity from prosecution or a mitigation of the punishment.
- As mentioned earlier, most persons prefer to report internally first. Generally, persons are required to report first internally or to a central body. Some countries do not protect internal reporting, but require every report to be made to regulators and law enforcement bodies. The risk is that cases which are not of a big scale (at least not at the first look – see tip of the iceberg problem) do not get reported. Also, it reduces the responsibility of the employer. An employer might have a vested interest to know what is going on in his company in order to rectify things. Especially in big companies. So internal reporting and handling concerns at an early stage (before the damage becomes too big) should be promoted as a first entry . Other states do not protect external reporting. However, in cases where the system fails or is not appropriate in a specific situation, there should be a possibility to go outside as a last resort. The Whistleblower will often have to take the risk and assess the situation himself (and with legal advice). The court might later rule differently. But the more court rulings are public, the clearer the situation will become. The most appropriate person to contact will depend on the seriousness and sensitivity of the issues involved and who is suspected of wrongdoing or acting irresponsibly. Since legislation often gives workers legal protection if they make external disclosures (e.g. to regulators) in certain circumstances, it is in an employer’s interest to specify who they regard as appropriate recipients.
- In the case Mr. Collins worked for the British National Trust (nature conservation society which is the owner of much public land). He came across a draft report which mentioned that some land owned by the NT was probably contaminated through local industry. It was an area designated as a public beach and could cause risk to the environment as well as to public health. The report identified in particular children as being at risk as they played it he area. The NT did not release the report but said it would first engage in additional consultations and inquiry. Mr. Collins then leaked the report to the local media and was subsequently dismissed by the NT. Mr Collins went to court and filed for unfair dismissal. The Court ruled that the action of the NT to make further inquiries before going public may possibly have been reasonable, but that this did not automatically render Mr. Collins act unreasonable! He reasonably believed that the information was true, saw a genuine risk for the environment and public health which was exceptionally serious. In Collins v National Trust (ET Case 2507255/05) an employment tribunal ruled that the leak to a local newspaper of a confidential report about dangers on a public beach was protected external reporting on own internet page etc.) http://www.pcaw.org.uk/law-policy/legal-updates Other cases – Heinisch vs Germany, Guja vs Moldova etc. US Cases?
- Apsects to think about when advising a whistleblower (Could also include other forms of external reporting on own internet page etc.)
- Freedom of expression not an absolute right, but to be balanced against other rights. UDHR – Article 19 and restrictions in 29 ICCPR – Article 19 (1) is on opinion and can’t be restricted; Article 19 (2) is right on expression, (3) outlines the requirements that restrictions must meet to be acceptable. Interference with the right of freedom of expression must be 1) Prescribed by law (unambiguous law, clearly understandable and accessible to all), 2) For a legitimate aim (rights and reputation of others, national security, ordre public, public health and morals), 3) Necessary (in a democratic society – even written in UDHRs) and proportional (necessary to reach this aim, not only “reasonable” and no other less intrusive option available)
- I have not yet collected in-depth case material on human rights jurisprudence for this presentation. However, I wanted to underline that Human Rights and Constitutional Rights can play a decisive role when it comes to Whistleblowing if cases need to be judged where an individual went public or to a newspaper.
- The competency to take protective measures might depend on the type of measure. Confidentiality for instance should be provided by any unit that receives reports. If physical protection is necessary, the involvement of a specialised unit might be necessary etc. Some countries have specialised agencies to receive claims about retaliation (e.g. New Zealand) other countries have different units within the anti-corruption agency to deal with reports and retaliation (Korea) How to define who is a whistleblower? What questions to ask in first interaction? Whistleblower as potential witness or as a mere source of intelligence? In US one of oru expert consultatns who handled WB concerns said it is often disgruntled employees who are frustrated or new ones who are shocked about issues or cooperating offenders meaning people who did partake – often to a lesser degree – in some wrongdoing but who get frustrated. The latter are more often witnesses in corruption cases and it is a tactic to get the smaller fish to get to the bigger fish.
- The importance of confidentiality should not be underestimated. It is the first line of protection! Criminalisation if disclosure of confidential information. This confidential information includes the information on the alleged offender in order to protect persons from wrongful allegations! (Australia, Malaysia and many other countries). Burden of proof normally on whistleblower to say that the action is unjustified and linked to his reporting. Law can clarify that the whistleblower only needs to showcase that he did report and that the action against him was taken. Then the employer needs to establish why those are not connected. Retaliation is usually defined as actual or threatened adverse HRM action or other detrimental action. Physical protection normally associate with witness protection programmes, mainly run by specialised police units. Inter-agency collaboration of importance. Other measures: Incentives
- UNCAC does not require that in any case a separate authority is needed. But some countries might prefer that. Korea example.
- Some countries might prefer the separation – at least as fully indepenent units. Assure independent advice (the investigating body will want the information and might not be able to provide independent advice) Act as an oversight body e.g. to require employers and others to establish reporting channels and to submit information on the actions they have taken. In the Netherlands it was discussed to host the House of Whistleblowers as an indepentend unit of the Ombudsman Office ( a trusted authority). The Parliament adopted the bill, but the Senat rejected it and asked for a completely independent institution. Considerations: Which authority is trusted and has the knowledge/skills. Are there resources to establish a new institution?
- In the US good experience but mainly in relation to financial crime cases e.g. listed companies, securities commission. This is just for discussion. I think once a whistleblower is known there is no objection against recognition. But if there are internal reporting systems and they try to protect the confidentiality, the question is if the reward will be well received or if the person rather stays unknown. A company or ministry or regulator might rather consider to publish information how many whistleblower reports they received, how many lead to investigations etc. This helps to create trust