Whistleblowing has become a dynamic regulatory field. Several jurisdictions have recently opened public consultations in this relation. They recognise the need to protect the good faith whistleblower disclosing alleged wrongdoing to ensure, in fine, the respect of the public interest.
This article presents international framework on whistleblowing (Part I.), model laws (Part II.), national reference regulation (Part III.) and national regulation which is commendable for specific aspects (Part IV.).
I. International and regional conventions
United Nations (UN)
Article 33 of the UN Convention against Corruption prescribes:
“Each State Party shall consider incorporating into its domestic legal system appropriate 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 offences established in accordance with this Convention.”
In addition, article 8 of the Convention calls for the establishment of measures and systems to facilitate the reporting of acts of corruption by public officials.
Council of Europe (CoE)
Article 9 of the Civil Law Convention on Corruption protects employees by stating:
“Each Party shall provide in its internal law for appropriate protection against any unjustified sanction for employees who have reasonable grounds to suspect corruption and who report in good faith their suspicion to responsible persons or authorities.”
Organization of American States (OAS)1
The Inter-American Convention against Corruption envisages preventive measures and the establishment of systems to protect public servants and private citizens who, in good faith, report acts of corruption, including protection of their identities.
African Union (AU)2
The African Union Convention on Preventing and Combatting Corruption qualifies whistleblowing as the core instrument of combatting corruption and calls on States to:
– Adopt legislative and other measures to protect informants and witnesses in corruption and related offences, including protection of their identities;
– Adopt measures that ensure citizens report instances of corruption without fear of consequent reprisals.
European Union (EU)
The law of the European Union does not contain an EU-wide legislation on the whistleblower protection. In this respect, the European Commission has recently opened public consultations. For the moment, it is not yet clear whether a legislative act or a soft-law approach will be proposed.
II. Model laws and guiding principles
The OAS model law grants protection to good faith whistleblowers and witnesses of acts of corruption. The model law envisages legal assistance, confidentiality and other protective measures, e.g. change of workplace, suspension with pay, police protection, change of identity, monetary assistance, etc. International and inter-institutional cooperation is foreseen in this respect. When it comes to the noncompliance with the duty to grant the preventive measures, administrative, civil, and criminal liability shall be triggered. Moreover, a creation of special protection agency is suggested. Furthermore, the model law obliges to disseminate the whistleblower legislation among workers and to the general public. A template form for reporting acts of corruption is presented as well.
United States (US)
The US model law governs the “protected disclosure”. It contains the definition of whistleblowing and the prohibition of discrimination. The burden of proof stays with the employee. The model law foresees the possibility of a civil law action. In addition, the employee’s dismissal/settlement can solely be approved by the court. Finally, remedies such as attorney’s fees and a whistleblower’s reward are proposed.
Organisation for Economic Co-operation and Development (OECD)
The OECD (G20) considers that a dedicated legislation on whistleblower protection shall be governed by the following principles3:
– Clear definition of scope, persons and acts protected, including the “good faith” clause;
– Reporting procedure and channels are clearly defined;
– Robust and comprehensive protection system against detrimental actions is instituted;
– A specific protection body is created;
– Awareness raising, communication and training is foreseen.
Following the G20 commitments in 2011, some authors4 stated that the US, UK and South Korea have the best performing legislation on the whistleblower protection. Albeit, the multiplicity of laws and their inconsistency represents a significant burden in US, i.e. 47 different laws are applicable to whistleblowing5.
III. National reference legislation
Globally, the majority of jurisdictions possess a regulatory framework protecting whistleblowers. Albeit in some aspects they differ greatly. Certain countries have adopted a dedicated legislation on the whistleblower protection, others typically regulate the domain under their anti-corruption laws. We believe that all-encompassing legislation on whistleblower protection is the best approach, as there exist other illegal practices apart from corruption that need to be tackled to safeguard the public interest ( abuse of power, damage to the environment and health, etc.). Moreover, regulatory fragmentation and inconsistency is avoided with such an approach.
In particular, several jurisdictions protect only the public officials as eventual whistleblowers, whilst others include the private sector. Thus it is important to define adequately the scope of the legislation and specific definitions, e.g. whistleblower, improper conduct, etc. Many countries have set up a reporting procedure together with a reward fund and a few envisage specific portals, postboxes or hotlines to facilitate the whistleblowing.
Accordingly, we present good examples of national laws on whistleblowing – highlighting in Italic the relevant provisions and in bold the respective regulatory techniques.
1. The law of Japan has a wide application as it covers wrongdoings that interfere with the protection of individuals’ lives and bodies, their interest as the consumers, with fair competition, and with citizens’ lives, bodies, property and other interests as well as with the conservation of the environment,.
The law grants protection to employees in public and private sector under the condition that the disclosure is made “without a purpose of obtaining a wrongful gain, a purpose of causing damages to others, or any other wrongful purpose”. The law offers protection to dispatched workers, which is a rare but commendable regulatory approach. Japan considers void any contract provision preventing the disclosure of illegal practices. More generally, the law contains the prohibition of disadvantageous measures towards the whistleblower and previews for remedial measures, without defining them further. It also briefly defines a reporting procedure.
2. The law of South Korea qualifies whistleblowing as a duty of every public official. As other laws, it allows the disclosure of past and future public interest violation, i.e. which is likely to occur. South Korea is extremely inventive in terms of listing unconventional detrimental actions of employers against whistleblowers. The list includes unjustified audit, cancellation of license or training, cancelation of contract for goods or services, putting the whistleblower on a blacklist, etc. The law contains a specific provision on the respect of confidentiality of the whistleblower identity and envisages disciplinary actions in case of its violation. Furthermore, South Korea foresees protective measures and the cooperation between different institutions, e.g. administrative authorities, counseling and medical centers, etc. Commendably, the law grants compensation for psychological ill-treatment, litigation fees and moving expenses of a whistleblower. In a situation where whistleblowing leads to the detection of a crime (other than the reported one) perpetrated by the whistleblower, his/her punishment may be mitigated or remitted. Finally, a whistleblower may request a reward if his/her reporting resulted directly in the recovery or increase in revenues for the government.
3. The Whistleblower Protection Law of Malaysia grants:
(a) Protection of confidential information;
(b) Immunity from civil and criminal action; and
(c) Protection against detrimental action
to any person making a disclosure of wrongdoing based on his “reasonable belief”.
Malaysia has instituted a detailed complaint procedure, together with a specifically defined protection and complaint procedure with deadlines for whistleblowers subjected to detrimental action. Injunctions, compensation and other measures such as relocation of place of employment are foreseen. Malaysia prescribes personal liability of an individual against whom such a civil action is taken, which can also serve as a preventive measure. As an incentive, disclosure of improper conduct and complaining on detrimental actions triggered by the whistleblowing are rewarded.
4. Jamaica confers immunity to good faith whistleblowers against criminal, civil and disciplinary liability. This also applies to atypical workers, such as subcontractors and volunteers. Interestingly, the law covers multiple forms and a wide range of improper conduct:
(a) Criminal offence;
(b) Failure to carry out a legal obligation;
(c) Conduct that is likely to result in a miscarriage of justice;
(d) Conduct that is likely to threaten the health or safety of a person;
(e) Conduct that is likely to threaten or damage the environment;
(f) Conduct that shows gross mismanagement, impropriety or misconduct in the carrying out of any activity that involves the use of public funds;
(g) Act of reprisal against or victimization of an employee;
(h) Conduct that tends to show unfair discrimination on the basis of gender, race, place of origin, social class, colour, religion or political opinion; or
(i) Wilful concealment of any act described in paragraphs (a) to (h).
An identical provision can be found in the proposed whistleblower protection laws of Trinidad and Tobago and Guyana, which evidently shows the inspiration received from a comparative regulatory analysis in the region. Moreover, Jamaica envisages a monetary fine and imprisonment for everyone who would intimidate an employee willing to disclose such a wrongdoing.
Commendably, Jamaica has stringently determined reporting chains and their time lines. E.g. if the authority refuses the investigation, it needs to justify its decision within 15 days. Furthermore, the law envisages public awareness campaigns for employees, employers and general public. Additionally, a periodic review of existing procedures is planned. Finally, a list of authorised persons to whom a disclosure may be made to is annexed to the law.
5. The legislation of Australia is of high quality. It is very specific, detailed and clear when it comes to the procedure of handling disclosure, the role of competent authorities and scope of the law. For example, even implied and conditional/unconditional threat of reprisal is qualified as an offense. However, it is limited in scope in so far as it concerns only public officials.
Diverse civil remedies are in place in Australia, e.g. reinstatement of employment, injunctions, an apology. Proceedings in these respects are free of charge. Similar to the law of India, Australia envisages an annual report produced by the Ombudsman. The report shall indicate the number of disclosure investigations, types of disclosable conduct reported and the actions taken. Finally, education and awareness programs are foreseen, including for former public officials.
In February 2017, Australia closed targeted public consultations for the protection of tax and corporate whistleblowers. Parliamentary inquiry is still ongoing.
6. The law of Serbia is extremely broad in its scope. It clearly determines the disclosure procedure and grants various procedural guarantees to a whistleblower.
The law offers protection to any natural person, including to persons in the process of recruitment. In contrast with other laws that remain silent on the “good faith”, “reasonable belief” condition of a disclosure, the Serbian law offers a solution: “the truthfulness of the information disclosed would be credible to a person possessing the same average level of knowledge and experience as the whistleblower” at the time of the whistleblowing.
Under the Serbian law, a protected disclosure can concern an infringement of legislation, violation of human rights, exercise of public authority in contravention with the purpose it was granted, or any danger to life, public health, safety, and the environment. The disclosure may also aim to prevent large-scale damage. Under the law, even anonymous disclosure may be protected, as well as disclosure containing classified information. In addition, it contains a specific provision on the data protection of a whistleblower. Serbia differs among internal, external and public whistleblowing. It enlists 14 prohibited detrimental actions in relation to:
“1. Hiring procedure; 2. Obtaining the status of an intern or volunteer; 3. Work outside of formal employment; 4. Education, training, or professional development; 5. Promotion at work, being evaluated, obtaining or losing a professional title; 6. Disciplinary measures and penalties; 7. Working conditions; 8. Termination of employment; 9. Salary and other forms of remuneration; 10. Share in the profits of the employer; 11. Disbursement of bonuses or incentivizing severance payments; 12. Allocation of duties or transfer to other positions; 13. Failing to take measures to provide protection from harassment by other persons; 14. Mandatory medical examinations or examinations to establish fitness for work.”
Judicial relief for a whistleblower shall be granted in an urgency procedure. Judges in charge need to possess a special knowledge on whistleblowing protection, received through trainings by the Judicial Academy. Moreover, the law obliges the employer to prove that measures taken against the whistleblower are justified for reasons other than the whistleblowing. Furthermore, the defendant can be judged in absentia and the principle of ex officio investigation is foreseen. Finally, the parties are offered the mechanism of alternative dispute resolution.
IV. Special aspects
As to setting up of a protection authority for whistleblowers, the law of Canada and US could serve as a regulatory reference. They contain inter alia provisions regarding the authority’s tasks and on its procedures.
Alberta (Canada) foresees that an employee who is considering to make a disclosure may receive an advice from a designated officer or the public Interest Commissioner beforehand.
The law of Ghana offers legal assistance and police protection to whistleblowers and his/her relatives.
Uganda foresees a percentage participation to reward the whistleblower, i.e. 5% of the net liquidated sum of money recovered as a result of the disclosure.
Bosnia and Herzegovina envisages to annually blacklist institutions, where acts of corruption occurred, together with the types of detrimental actions reported. This evidently results in the “public shaming”. Moreover, an individual can request for a whistleblower status. Accordingly, the person is protected against any form of liability even in cases of disclosing an official secret to the competent authority.
Commendably, Canada has recently introduced a new reporting channel for confidential disclosure in the energy sector:an online website, a hotline and a confidential postbox are made available to the public.
Ireland requires from the Minister to conduct a review of the operability of the legislation and report on the findings to the legislator. Equally, Alberta (Canada) envisages such a review every 5 years.
List of national laws on the whistleblower protection can be found here.
The OECD (G20) Action Plan with guiding principles for whistleblower legislation.
Transparency International Australia report and executive summary on whistleblower protection legislation in G20 countries (2014).
This article has been written by Ajda Mihelčič, M.A.S., on behalf of the Regulatory Institute, Brussels.
Annex I.: English translation of the whistleblower protection legislation of Japan
“Whistleblower Protection Act
Act No. 122 of June 18, 2004
The Purpose of this Act is to protect Whistleblowers to provide for nullity, etc. of dismissal of Whistleblower. on the grounds of Whistleblowing and the measures that the business operator and Administrative Organ shall take concerning Whistleblowing, and to promote compliance with the laws and regulations concerning the protection of life, body, property, and other interests of citizen, and thereby to contribute to the stabilization of the general welfare of the life of the citizens and to the sound development of socio economy.
The term “Whistleblowing” as used in this Act shall mean whistleblowing made by a worker (which shall mean worker as provided for in Article 9 of the Labor Standards Act (Act No. 49 of 1947); the same shall apply hereinafter), without a purpose of obtaining an wrongful gain, a purpose of causing damages to others, or any other wrongful purpose, about Reportable Fact that has been occurred, is being occurred or is about to be occurred by “Business Operator” (which shall mean any of the following business operators (which shall mean juridical person, other organization and individual who operates a business)), or such persons as officer, employee or agent in the workplace where the worker is occupied in performing the Business Operator’s business activities, to the said Business Operator or the person designated by the said Business Operator in advance (hereinafter referred to as “Business Operator, etc.”), to an Administrative Organ with the authority to impose disposition (which shall mean an order, rescission, and other acts involving the exercise of public authority; the same shall apply hereinafter) or recommendation, etc. (which shall mean a recommendation and other acts which are not disposition; the same shall apply hereinafter) upon the said Reportable Fact, or to any person who are recognized to be necessary to do whistleblowing to the said Reportable Fact in order to prevent the occurrence thereof or the spread of damage caused thereby (including person who suffers or might suffer damage from the said Reportable Fact, but excluding any person who might cause damages to the competitive position or any other legitimate interests of the Business Operator; the same shall apply in Item (iii) of the following Article.).
(i) Business Operator which employs the said worker itself (except Business Operator in the following Item);
(ii) In the case the said worker is a dispatched worker (which means Dispatched worker as provided for in Item (ii) of Article 2 of the Act on Securing the Proper Operation of Worker Dispatch Business and Improvement of Working Conditions for Dispatched Workers (Act No. 88 of 1985. Referred to in Article 4 as “Worker Dispatching Act”)), Business Operator which accepts the service of worker dispatching (which means worker dispatch provided for in Item (i) of the Article 2 of the said Act; the same shall apply in paragraph 2 of Article 5); or
(iii) Business operator of which the said worker is in pursuance of the business in the case the business operator listed in the preceding two Items engages in work based on a contract for work or any other agreement concluded with said business operator.
(2) The term “Whistleblower” as used in this Act shall mean a worker who has done whistleblowing.
(3) The term “Reportable Fact” as used in this Act shall mean any of the following facts:
(i) Fact of criminal act provided for in the Acts (including the orders based on those Acts; the same shall apply to the following Item) listed in the appendix, concerning the protection of interests such as the protection of individuals’ lives and bodies, the protection of interest of the consumers, the conservation of the environment, the protection of fair competition, and the protection of citizen’s lives, bodies, property and other interests; or
(ii) Fact, in the case where a violation of a disposition pursuant to the Act listed in the appendix constitutes the fact provided for in the preceding Item, which is the ground of the said disposition (including the fact, in the case where the said ground is the fact which is the violation of other disposition or not complying with recommendation, etc. pursuant to the Act listed in the appendix, which is the ground of the said other disposition or recommendation, etc.).
(4) The term “Administrative Organ” as used in this act shall mean any of the following organs:
(i) Cabinet Office, the Imperial Household Agency, organs provided for in Article 49, paragraph 1 or 2 of the Act for Establishment of the Cabinet Office (Act No. 89 of 1999), organs provided for in Article 3, paragraph 2 of the National Government Organization Act (Act No. 120 of 1948), organs under the jurisdiction of the Cabinet which were established pursuant to laws, organs established within one of these organs, or the personnel of the above mentioned organs who are authorized by laws to independently exercise such authority; and,
(ii) Organs (excluding assemblies) of local public entities.
(Nullity of Dismissal)
In the case a Whistleblower is dismissed by the business operator provided for in Item (i) of Paragraph 1 of the preceding Article on the basis of Whistleblowing provided for in each of the following Items in the respective case, the dismissal shall be void:
(i) In the case a Reportable Fact is considered to have occurred, occur or be about to occur: Whistleblowing to the said the Business Operator, etc.;
(ii) In the case there are reasonable grounds to believe that the Reportable Fact has occurred, occurs or is about to occur: Whistleblowing to an Administrative Organ with the authority to impose Disposition or Recommendation, etc.; or
(iii) In the case there are reasonable grounds to believe that the Reportable Fact has occurred, occurs or is about to occur and when any of the following applies: Whistleblowing to any person to whom such Whistleblowing is considered necessary to prevent the occurrence of the Reportable Fact or the spread of damage caused by the Reportable Fact:
(a) In the case the Whistleblower has reasonable grounds to believe that he/she will receive dismissal or other disadvantageous treatment if he/she does whistleblowing as provided for in the preceding two Items;
(b) In the case the Whistleblower has reasonable grounds to believe that the evidence pertaining to the Reportable fact might be concealed, counterfeited, or altered if he/she does whistleblowing as provided for in Item (i);
(c) In the case the Whistleblower was requested by the Business Operator, without any justifiable reason, not to blow a whistle provided for in the preceding two Items;
(d) In the case the Whistleblower does not receive notice from the said Business Operator, etc., about the commencement of an investigation on the Reportable fact within twenty days from the day of the Whistleblowing provided for in Item (i) made in writing (including a record made by an electronic method, a magnetic method, or any other method not recognizable to human senses.; the same shall apply to Article 9), or the said Business operator, etc. does not investigate without any justifiable reason; or
(e) In the case the Whistleblower has a justifiable reason to believe that some damage to the life or body of an individual is caused or about to be caused.
(Nullity of the Cancellation of a Worker Dispatch Contract)
In the case the Whistleblower is a dispatched worker working under the direction of the business operator as provided for in Item (ii) of Paragraph 1 of Article 2, the cancellation of the worker dispatch contract (which means a worker dispatch contract provided for in Paragraph 1 of Article 26 of the Dispatched Worker Act) on the basis of Whistleblowing provided for in the Items of the preceding Article shall be void.
(Prohibition of Disadvantageous Treatment)
In addition to Article 3, the business operator provided for in Item (i) of Paragraph 1 of Article 2 shall not give any disadvantageous treatment such as demotion, a salary cut or other treatment to Whistleblower who is or was its employee on the basis of such Whistleblowing as provided for in the Items of Article 3.
(2) In addition to such disadvantageous treatment as provided for in the preceding Article, such business operator as provided for in Item (ii) of Paragraph 1 of Article 2 shall not give any disadvantageous treatment, such as asking the business operator dispatching the Whistleblower to replace him/her with another dispatched worker, to Whistleblower who is a dispatched worker working under the direction of the business operator on the basis of such Whistleblowing as provided for in the Items of Article3.
(Provision on Construction)
The provisions of the preceding three Articles shall not preclude the application of the provisions of other laws and regulations (which shall mean Acts and orders based on Acts; the same shall apply to Paragraph 1 of Article 10) that prohibit a dismissal or any other disadvantageous treatment of worker or dispatched worker on the basis of the fact that the worker has blown a whistle pertaining to the Reportable Fact.
(2) The provisions of the Article 3 shall not preclude the application of the provision of Article 18-2 of the Labor Standards Act.
(Treatment of National Public Employees in the Regular Service)
Notwithstanding the provisions of Article 3 to Article 5, the prohibition of dismissal or any other disadvantageous treatment of the national public officers in the regular service, court officers to whom the Act on Temporary Measures concerning Court Officer (Act No. 299 of 1951) is applicable, Diet officers to whom the Diet Officers Act (Act No. 85 of 1947) is applicable, SDF personnel specified in Paragraph 5 of Article 2 of the Self-Defense Forces Act (Act No. 165 of 1954), and local public officers in the regular service (referred to as “National Public Officers in the Regular Service, etc.” in this Article) on the basis of Whistleblowing provided for in Items of Article 3 shall be governed by the provision of the National Public Officer Act (Act No. 120 of 1947, including the cases where it is applied mutatis mutandis pursuant to the Act on Temporary Measures concerning Court Officer), Diet Officers Act, Self-Defense Forces Act, and Local Public Officers Act (Act No. 261 of 1950). In this case, the appointer of National Public Officers in the Regular Service, etc., and any other business operator provided for in Item (i) of Paragraph 1 of Article 2 shall apply the provisions of these Acts in order to prevent dismissal or any other disadvantageous treatment of any National Public Officers in the Regular Service, etc., on the bases of the Whistleblowing as provided for in the Items of Article 3.
(Respect of Justifiable Interests, etc., of Others)
Any worker who is to do whistleblowing as provided for in the Items of Article 3 shall make efforts not to damage the justifiable interests of others and the public interests.
(Notice of Remedial measure, etc.)
Any business operator which receives Whistleblowing made in writing as provided for in Item (i) of Article 3 from a Whistleblower shall make efforts to notifythe Whistleblower, without delay, that the business operator has taken measures to stop the Reportable Fact or other necessary measure to rectify or that the business operator has not discovered the Reportable Fact pertaining to the said Whistleblowing.
(Measures That Should Be Taken By the Administrative Agency)
Any Administrative Organ which receives Whistleblowing as provided for in Item (ii) of Article 3 from a Whistleblower shall conduct the necessary investigations, and if such investigations confirm the existence of the Reportable Fact, the Administrative Organ shall take appropriate measures such as the measures required by laws and regulations.
(2) In the case the Whistleblowing provided for in the preceding Paragraph is about criminal act as provided for in Item (i) of Paragraph 3 of Article 2, provisions of the Code of Criminal Procedure (Act No. 131 of 1948) shall apply to the criminal investigation and prosecution, notwithstanding the provision of the preceding Paragraph.
When an Administrative Organ receives Whistleblowing provided for in Paragraph 1 of the preceding Article, if the Administrative Organ is not authorized to impose a disposition or a recommendation, etc. about the Reportable Fact pertaining to said Whistleblowing, the said Administrative Organ shall inform the said Whistleblower to Administrative Organ which has the authority to impose a disposition or a recommendation, etc. about the Reportable Fact pertaining to said Whistleblowing.
This Act shall come into force as from the day provided for in a cabinet order, which shall be set within two years from the day of promulgation, and apply to Whistleblowing made on and after the effective date.
Approximately five years after this Act comes into force, the Government shall examine the state of enforcement of this Act and shall take necessary measures based upon those results.
Attached List (related to Article 2 hereof)
(i) Penal Code (Act No. 45 of 1907)
(ii) Food Sanitation Act (Act No. 233 of 1947)
(iii) Securities Trade Act (Act No. 25 of 1948)
(iv) Act Concerning Standardization and Proper Labeling on Quality of Agricultural and Forestry Products (Act No. 175 of 1950)
(v) Air Pollution Control Act (Act No. 97 of 1968)
(vi) Waste Disposal and Cleaning Act (Act No. 137 of 1970)
(vii) Act on the Protection of Personal Information (Act No. 57 of 2003)
(viii) Any Acts other than those provided for in the preceding Items that are provided for in a cabinet order as Acts concerning the protection of interests such as the protection of individuals’ lives and bodies, the protection of interest of the consumers, the conservation of the environment, the protection of fair competition, and theprotection of citizen’s lives, bodies, property and other interests. “
1 OAS brings together all 35 independent states of the Americas and constitutes the main political, juridical, and social governmental forum in the Hemisphere. In addition, it has granted permanent observer status to 69 states, including the European Union (EU).
2 Continental organisation consisting of all 55 countries on the African continent.