by Alison Glick
The new report by Special Rapporteur for Freedom of Expression at the United Nations, David Kaye, adds to the growing call for increased whistleblower protections as necessary to strengthen and ensure the right to information and free expression. In his report, Kaye analyzes not only international and national legal frameworks used to protect sources of information and whistleblowers, but also the practices of global and regional mechanisms that seek to offer protections. Significantly, the report also singles out the work of civil society organizations as vital in these areas.
Taking as its point of departure the right of individuals to “information of all kinds, especially information held by public bodies,” the report frames its legal analysis by asserting that “Sources and whistle-blowers enjoy the right to impart information, but their legal protection when publicly disclosing information rests especially on the public’s right to receive it.” In so doing Kaye ties whistleblower protection to the public’s right to know, thereby making a public interest defense core to any meaningful whistleblower protection.
The report broadly defines whistleblowing as an activity that should be protected both inside and outside an employment setting. As such, whistleblowing should be seen as involving disclosures of individual wrongdoing, as well as uncovering information hidden from the public that we have a “legitimate interest in knowing.” The report directly takes on those who claim that whistleblowing is not fundamentally in the public interest by challenging the narrow definition asserted by many states: “While the term ‘public interest’ may appear capacious as a basis for whistle-blower protection, a State might define ‘public interest’ as involving information that contributes to public debate, promotes public participation, exposes serious wrongdoing, improves accountability or benefits public safety.” With this framing of the subject in an environment dominated by national security interests, Kaye is attempting to reassert other priorities worthy of state protection: the public’s right to think and act as informed citizens, and an individual’s right to free expression.
The Special Rapporteur is clear that asserting and protecting such rights goes beyond national legislatures passing laws or international bodies enacting resolutions. Nothing less than a sea change in social and cultural views is necessary: “…beyond law, the right to information also requires a bedrock of social and organizational norms that promote the reporting of wrongdoing or other information in the public interest. The strengthening of such norms requires training at all levels of organizations, supportive polices and statements from political and corporate leaders, international civil servants, the courts and others…” That conventional norms are shifting in that direction is evidenced in part by how the general public has come to view Edward Snowden — first as a “traitor” or “thief” to someone who is now largely viewed as a whistleblower who acted for the public good.
Civil society network organizations like WIN seek to promote those norms, through the work of our constituent organizations, our support for local campaigns and individual whistleblowers, our activities with investigative journalists, as well as the legal advice we give to states grappling with passing effective whistleblower legislation. This report and its recommendations make clear that the work of civil society organizations is now at center stage when these issues are being addressed. Indeed, one of the Special Rapporteur’s recommendations reads:
State entities should also support civil society organizations that are expert in the areas of access to information, protection of journalists and their sources, and whistle-blower promotion and protection…States should ensure that civil society can participate fully in all efforts to adopt or revise source and whistle-blower laws, regulations and policies.
Alison Glick is an International Program Officer at the Government Accountability Project and GAP’s liaison to WIN