Whistleblower’s Role

September 8, 2019 by lucy Naigaga

class="cs40314EBF">Public Officials in International Business Transactions (Anti-Bribery Recommendation),

the 1998 OECD Recommendation on Improving Ethical Conduct in Public Service , the Council of Europe

 Civil and Criminal Law Conventions on Corruption, the Inter-American Convention against Corruption,

 and the African Union Convention on Preventing and Combating Corruption. Such provisions have

 strengthened the international legal framework for countries to establish effective whistleblower

protection laws.

 

1. Clear legislation and an effective institutional framework are in place to protect from

discriminatory or disciplinary action employees who disclose in good faith and on reasonable

grounds certain suspected acts of wrongdoing or corruption to competent authorities.

 

Examples of best practices in support of this principle could include, inter alia:

•  Enactment of dedicated legislation in order to ensure legal certainty and clarity, and to

avoid a fragmented approach to establishing whistleblower protection;

•  Requirement or strong encouragement for companies to implement control measures to

provide for and facilitate whistleblowing (e.g. through internal controls, ethics and

compliance programmes, distinct anti-corruption programmes, fraud risk management,

etc.).

2. The legislation provides a clear definition of the scope of protected disclosures and of the

persons afforded protection under the law.

Examples of best practices in support of this principle could include, inter alia:

•  Protected disclosures include: a violation of law, rule, or regulation; gross

mismanagement; a gross waste of funds; an abuse of authority; a substantial and specific

danger to public health or safety; or types of wrongdoing that fall under the term

“corruption”, as defined under domestic law(s);

•  Individuals are not afforded whistleblower protection for disclosures that are prohibited

by domestic laws in the interest of national defense or the conduct of foreign affairs,

unless the disclosures are made in the specific manner and to the specific entity/entities

those domestic laws require;

• Public and private sector employees are afforded protection, including not only

permanent employees and public servants, but also consultants, contractors, temporary

employees, former employees, volunteers, etc.;

• Clear definition of “good faith” or “reasonable belief”; although individuals are not

afforded protection for deliberately-made false disclosures, protection is afforded to an

individual who makes a disclosure based upon the individual’s reasonable belief that the

information disclosed evidenced one of the identified conditions in the statute, even if the

individual’s belief is incorrect.

 

3. The legislation ensures that the protection afforded to whistleblowers is robust and

comprehensive.

Examples of best practices in support of this principle could include, inter alia:

• Due process for both parties (the whistleblower and the respondent), including, inter

alia, the need for protecting confidentiality;

•  Protection from any form of discriminatory or retaliatory personnel action, including

dismissal, suspension, or demotion; other disciplinary or corrective action; detail transfer,

or reassignment; performance evaluation; decision concerning pay, benefits, awards,

education or training; order to undergo medical test or examination; or any other

significant change in duties, responsibilities, or working conditions;

• Protection from failure to take personnel actions, such as selection, reinstatement,

appointment, or promotion;

•  Protection from harassment, stigmatisation, threats, and any other form of retaliatory

action;

• Protection from other forms of retaliatory conduct, including through waiver of

liability/protection from criminal and civil liability, particularly against defamation and

breach of confidentiality or official secrets laws;

• Protection of identity through availability of anonymous reporting;
• Clear indication that, upon a prima facie showing of whistleblower retaliation, the

employer has the burden of proving that measures taken to the detriment of the

whistleblower were motivated by reasons other than the disclosure;

• Protection against disclosures an individual reasonably believes reveal wrongdoing even

if the whistleblower is incorrect”;

•  Protection of employees whom employers mistakenly believe to be whistleblowers.

4. The legislation clearly defines the procedures and prescribed channels for facilitating the

reporting of suspected acts of corruption, and encourages the use of protective and easily

accessible whistleblowing channels.

• Examples of best practices in support of this principle could include, inter alia:
•  Provision of protection for disclosures made internally or externally;
• Establishment of internal channels for reporting within the public sector;
•  Strong encouragement for companies to establish internal reporting channels;
•  Protection afforded to disclosures made directly to law enforcement authorities;
•  Specific channels and additional safeguards for dealing with national security or statesecrets-related disclosures;
•  Allowing reporting to external channels, including to media, civil society organisations, etc.;
•  Incentives for whistleblowers to come forward, including through the expediency of theprocess, follow-up mechanisms, specific protection from whistleblower retaliation, etc.;
•  Positive reinforcements, including the possibility of financial rewards for whistleblowing;
• Provision of information, advice and feedback to the whistleblower on action being taken in response to disclosures.

5. The legislation ensures that effective protection mechanisms are in place, including by

entrusting a specific body that is accountable and empowered with the responsibility of

receiving and investigating complaints of retaliation and/or improper investigation, and by

providing for a full range of remedies.

Examples of best practices in support of this principle could include, inter alia:

•  Appointment of an accountable whistleblower complaints body responsible for

investigating and prosecuting retaliatory, discriminatory, or disciplinary action taken

against whistleblowers who have reported in good faith and on reasonable grounds

suspected acts of corruption to competent authorities;

•  Rights of whistleblowers in court proceedings as an aggrieved party with an individual

right of action, and to have their “genuine day in court”;

•  Penalties for retaliation inflicted upon whistleblowers, whether this takes the form of

disciplinary or discriminatory action, of civil or criminal penalties.

 

6. Implementation of whistleblower protection legislation is supported by awareness-raising,

communication, training and periodic evaluation of the effectiveness of the framework of

protection.

Examples of best practices in support of this principle could include, inter alia:

•  Promoting awareness of whistleblowing mechanisms, provide general advice, monitor

and periodically review the effectiveness of the whistleblowing framework, collect and

disseminate data, etc.;

• Raising awareness with a view to changing cultural perceptions and public attitude

towards whistleblowing, to be considered an act of loyalty to the organisation;

• Training within the public sector to ensure managers are adequately trained to receive

reports, and to recognise and prevent occurrences of discriminatory and disciplinary

action taken against whistleblowers;

• Requirement in the law that employers post and keep posted notices informing employees

of their rights in connection with protected disclosures

 

 

Brief overview of the benefits of public sector whistleblower protection

 

• Encouraging the whistleblowing on acts of suspected corruption is essential in safeguarding

public interest and promoting a culture of public accountability and integrity. Public officials have

access to up-to-date information

concerning their workplaces’ practices, and are usually the first to

recognise wrongdoings. In most jurisdictions, it is an obligation for them to report corruption and other

malpractices. However, public officials who report wrongdoings may be subject to intimidation,

harassment, dismissal and violence by their fellow officials or superiors. In many countries,

whistleblowing is even associated with treachery or spying.77 This notion may be the result of the

influence of cultural connotations and, in turn, may also have an impact on individual careers and on

 the internal organisational culture.

• As a result, encouragement of whistleblowing must be associated with the corresponding

protection for the whistleblower. In the public sector, public servants need to know what their rights and

obligations are in terms of exposing actual or suspected wrongdoing within the public service. These

should include clear rules and procedures for officials to follow, and a formal chain of responsibility.

Public servants also need to know what protection will be available to them in cases of exposing

wrongdoing.

• Translating whistleblower protection into legislation legitimises and structures the

mechanisms under which public officials can disclose wrongdoings in the public sector,

 protects public officials against reprisals, and, at the same time, encourages them to fulfil their

duties in performing efficient, transparent and high quality public service. If adequately implemented,

legislation protecting public sector whistleblowers can become one of the most effective tools to support

anti-corruption initiatives, detecting and combating corrupt acts, fraud and mismanagement in the

public sector.80 The absence of appropriate legislation impedes the fight against corruption and

exposes whistleblowers to risks of retaliation.

•  Although in some countries whistleblower protection is still in its infancy, it is increasingly

recognised as an essential anti-corruption mechanism and a key factor in promoting a culture of public

accountability and integrity. For example, in OECD countries between 2000 and 2009, legal protection

for whistleblowers grew from 44% to 66%.

 

Private sector whistleblower protection: Legal provisions and voluntary measures

• Domestic legal provisions expressly devoted to the protection of whistleblowers in the private

sector are less common than for the public sector. However, the private sector is increasingly taking

voluntary measures to create internal channels for safely and confidentially reporting misconduct. This

could be for a number of reasons. An effective whistleblowing regime deters wrongdoing; facilitates the

reporting of misconduct without fear of retaliation; helps identify misconduct early on and thereby

prevent potentially grave disasters; and reduces the risk of potentially damaging external reports,

including to regulators or the media. Whistleblower protections are also an important element of an

internal controls, ethics and compliance programme, which—taken in the programme’s entirety—could

 demonstrate to shareholders and law enforcement that a company has made efforts to prevent, detect

and address corrupt behaviour. This could be especially relevant to companies subject to the

jurisdiction of anti-bribery and anti-corruption laws that include a defence against liability for certain

offences by having “adequate procedures” in place to prevent bribery, or where sentencing guidelines

provide more lenient sentences on companies with such programmes in place.

 

• There is no consensus as to which approach works best for ensuring the protection of private

sector whistleblowers: enacting domestic legal provisions, promoting voluntary measures among the

private sector, or combining the two. For example, the International Chamber of Commerce (ICC) warns

against over-regulation of private sector whistleblowing regimes, emphasising that self-regulation and

voluntary integrity programmes provides for effective protection of corporate interests and adaptability

to different workplace environments.159 Others have argued that current legal provisions for private-

sector whistleblowers can be narrow, inconsistent and/or difficult to navigate160; for example when

legislation limits the scope of private sector employees afforded protection, or when multiples laws may

apply to the same persons.

 

Whistleblowers and protection of sources

• The Survey indicated that whistleblowers are often the first source of information for

journalists reporting on corruption stories. Whistleblowers turn to journalists for various

reasons including to protect their identity, to bring issues of concern to the attention of the

public or government, or in the absence of effective responses by law enforcement or

employers. One journalist noted that reporting to the media can be more effective for a

whistleblower than reporting to law enforcement. While criminal proceedings

can take years to reach a conclusion, a journalist can draft and publish a story

within days that can reach a global readership through social media platforms.

New technology means that journalists can communicate with their sources via

encrypted communication platforms (e.g. Signal), which can protect the

whistleblower’s identity. However, journalists acknowledged the significant

risks to sources as a result of non-existent or vastly inadequate whistleblower

protection frameworks in many countries. Even in countries with whistleblower

protection laws, protection rarely extends to whistleblowers who report directly to the

media.13 54% of respondents considered protection of sources a concern when interacting

with law enforcement authorities in corruption cases. One journalist referred to an

ongoing administrative case between the media outlet and tax authorities, where the tax

authorities were compelling production of Panama Papers documents and editorial

material which, if disclosed, would reveal sources. For this journalist, the case

highlighted the lack of seriousness with which the authorities treated the protection of

sources. Some journalists were concerned about government surveillance or other

attempts to seek the identity of their sources; others approached law enforcement for

assistance with source protection, presumably in criminal cases where sources were

receiving physical threats from other perpetrators.

 

• Whistleblower protection was considered the second most valuable support for journalists

investigating corruption (63%), behind strong editorial board backing (77%). Journalists also

noted that their sources can also work for law enforcement agencies, and considered that these

sources should be protected as any other whistleblower. The media plays a potentially vital

role in de-stigmatising whistleblower reporting. For example, referring to a “leak” when

breaking a story based on information provided by a whistleblower (particularly an insider),

can serve to reinforce perceptions that the whistleblower was acting unethically or illegally in

providing such information. The role of whistleblowers and whistleblower protection in

detecting foreig