Whistleblowing – Corruption Prevention and the Public Interest

anna-myers-66958854In 2014, WIN Director Anna Myers was invited to give a lecture to the Thailand Anti-Corruption Agency about whistleblowing at the International Anti-Corruption Academy (IACA) near Vienna, Austria. The Academy asked Anna to write an article for the alumni magazine, IACAlumnus,  which she did including some of the questions that participants in the workshop asked – and which remain highly relevant today – and her attempts to answer them. WIN thanks the IACA for permission to reprint the article.

Whistleblowing is a hot topic right now not just for those interested in tackling corruption as a social, political, and economic ill, but it is also fast gaining currency amongst those working to prevent serious human rights abuses, as well as practitioners working to deliver more open government and access to information. Further, the link between whistleblowing and protecting journalists’ sources is also being highlighted, particularly among a new generation of journalists not necessarily based in established media or newspaper organizations, and who conduct serious investigations into corruption.[1]

However, while legal protection for whistleblowers is still a new concept, the act of whistleblowing is not new. Whistleblowing is a human instinct – speaking up to alert others to a danger or risk. Sometimes such warnings are gratefully received and acted on, but at other times the message is one that those in positions of authority do not want revealed or addressed and so it is ignored and the messenger discredited or punished. Many religious, moral, and philosophical teachings use the story of the individual truth teller to warn against abuse of power and ignorance and to urge humility when casting judgment on others. In ancient Greece, for example, there existed a practice called parrhesia which meant to make public testimony about a factual truth. Under the Hellenic monarchs, the king‘s advisor was required to use parrhesia both to help the king make decisions and as a means to temper his power.[2]

The king’s advisor of ancient Greece offers a nice comparison to the modern notion of the workplace whistleblower – someone who, by virtue of their work, comes across or is witness to wrongdoing or a problem and who is able to alert those who can do something about it before the damage is done or the harm is too great. While the relationship between a whistleblower and an employer is not the same as an advisor to a king – there are parallels. There is an imbalance of power in the relationship and while it may be in the king’s best interest to heed the message of his advisor, he may find it very hard to do so, particularly when it would limit his power or challenge his own perception of the truth. Without stretching the comparison too far, while some individuals in the workplace are paid to advise their employers most are not, and the risks to the livelihood and well-being of the vast majority of workers can be high if they report a concern to their employer and the message is not welcome.

We should also recall that in most political systems we do not rely on the brave acts of individual whistleblowers as the only check and balance to the “power of the king”. Instead we have governments, courts and parliaments; we separate the power of the executive from the legislature and from the judiciary; most of us expect our governments to be (more) open and to ensure that those with power, whether in the public or private sector, respect the rule of law and guard against human rights abuses and environmental damage; and we rely on the media to act independently and keep us informed. Considering whistleblowing in this wider context reveals the need to understand it as a democratic accountability mechanism that lets us know when our systems of checks and balances, however we have devised them, are failing for whatever reason. In some circumstances, whistleblowing can act as the catalyst for reform – revealing the need to develop mechanisms of democratic accountability that do not yet exist or are deeply flawed in their current form.

The Council of Europe adopted a Recommendation on the Protection of Whistleblowers in April 2014 and while it fully acknowledges the importance of whistleblowing in fighting corruption, it situates the protection of whistleblowers firmly within a democratic accountability and public interest framework.[3] I was consultant to the European Committee on Legal Cooperation on the drafting of the Explanatory Memorandum and it is hoped that this guidance will prove useful to governments and practitioners throughout Europe and beyond on some of the key elements required to create a strong legal, normative, and institutional framework to protect whistleblowers and to act on the information they provide. For those particularly interested in situating whistleblowing within an anti-corruption framework, an important new resource guide on protecting “reporting persons”, as set out in the United Nations Convention against Corruption (UNCAC), is expected to be published by the UNODC in early 2015. These are important resources not only for governments but also for civil society practitioners, whose active involvement in promoting whistleblowing and protecting whistleblowers cannot be underestimated.

For those of us who have worked in the field of whistleblowing for many years – as lawyers advising whistleblowers, as well as offering our insights to governments and private sector organizations on implementing fair and robust whistleblowing arrangements – we know that an active and engaged civil society is essential if whistleblower protection is to have a sustainable impact on better governance. National civil society commitment – with all the understanding of the cultural, political, and legal circumstances in which they operate – is the only way that whistleblowing has a real chance to be debated, understood, and accepted as a socially beneficial act that can help to protect the common good and keep a democracy healthy. This is why a group of well-established whistleblowing NGOs[4] came together to create the Whistleblowing International Network – to ensure that the lessons learned from hard-won experience in different national contexts are not lost, and to support greater civil society confidence and expertise to protect whistleblowers around the world. Civil society can make sure that that those who speak up for our benefit in the public good do not stand alone particularly when the message they deliver challenges the status quo and acts as a check on power.

In a training session I delivered at the International Anti-Corruption Academy (IACA), the delegates asked a number of questions that I thought were very interesting and were not unusual for those who are in the early stages of considering whistleblowing as an anti-corruption mechanism. I have reproduced these here in case they are of interest to other readers. Please note that many of my answers come from my time at, and the continuing work done by, Public Concern at Work, a legal advice center and advocacy body set up to promote and protect public interest whistleblowing.

Are there any qualifications for being a good whistleblower? If yes, what are they?

There are no “qualifications” as such and no one is “born” a whistleblower. The research that I know about suggests that individuals who voice concerns about wrongdoing or malpractice and try to ensure that it is taken seriously by their organization are typically hardworking, loyal staff, who believe that they are acting in the best interests of their organization– to stop damage, etc. But blowing the whistle can be a lonely and difficult task and there is very little support for such individuals and to help them understand how to communicate their concern in the most responsible way and to whom. Helpful models of supporting whistleblowers are Public Concern at Work in the UK (www. pcaw.org.uk) which provides confidential legal advice, and the Adviespunt Klokkenluiders (the Dutch Whistleblowing Advice Centre – http://www.adviespuntklokkenluiders.nl/).

What is the percentage of cases of corruption that have been identified or revealed by whistleblowers?

This is a vast question – if you mean by law enforcement bodies – then, as with the Austrian case of an internet based reporting system that is available to anyone who wishes to report “corruption” – 5% of all calls fall within the remit of the Federal Bureau of Anti-Corruption (BAK) and it is not clear what percentage come from individuals reporting information they have come across in the workplace. There are international studies that have been carried out by PricewaterhouseCoopers (PwC), for example, which have found that 31% of fraud within public sector organizations was detected by internal “tip-offs” – anonymously or through whistleblowing arrangements.[6] While it may be possible to quantify the numbers of cases of corruption detected, it is more difficult to determine how much corruption can be prevented by promoting whistleblowing but not impossible – an approach much like the exercise an insurance company engages in can help to determine how much money, time, and resources are saved when corruption is prevented. Certainly we can acknowledge the costs when issues are not raised early or addressed early enough and the damage that results.

Do cultural factors, particularly social attitudes and the media, influence the prevention of corruption and the solutions available to solve the problem?

Yes, and this is very clearly the case with whistleblowing. In the UK, for example, at Public Concern at Work, we had to work hard with the media to help them understand that there were “good” whistleblowing stories, where individuals did speak up, they kept their jobs, and the bad guys went to jail. Early on, the media view was that such a story was not a whistleblowing story because the whistleblower did not suffer. It is important to understand what it is about the notion of whistleblowing that is culturally unacceptable or questionable and consider how to address it clearly and positively. A sense of community is a good reason to support those who speak up to try to protect it, for example. In my view, understanding and working with the culture is one of the most important aspects of whistleblowing and means that the “solutions” may look a bit different in different countries.

What are the best protections for whistleblowers working in the public sector? Please describe – is it physical protection or protection of assets?

In the UK, the main issue for whistleblowers was and continues to be that what they report – that the information they disclose is assessed properly, and that any material issue is investigated and action taken when needed. The experience of many individuals in the UK is that their concern is ignored. The second issue, quite understandably, is their concern about the risk that they will suffer at work – whether they are demoted or overlooked for promotion or dismissed or harassed. Of course, in cases of serious corruption, a whistleblower may be threatened physically in order to silence them or stop them from going to the authorities, or for having already gone to the authorities. In these instances, police protection of some sort may be necessary or criminal action taken against the individuals who seek to intimidate or threaten. In the UK, threatening someone is a criminal offence in any event so these kinds of rules and laws have always applied to cases involving whistleblowers too.

How can you verify that information received is valid or relates to corruption?

This is a good and important question to ask. First of all, those who are officially designated to receive information from whistleblowers need to be trained – both in understanding the scope and limits of their function and to know what questions to ask and how to do so sensitively and professionally. I am not an investigator, for example, but when I did advise individuals about whistleblowing, I asked them a lot of questions – about the information and the grounds for their suspicions and how they might be further corroborated – e.g. were there documents or other individuals who might know more about it? Sometimes the whistleblower can indicate how best to find out more – they are telling you where to look. Sometimes it is not enough to open a case as such but, along with other information, indicate that there might be a problem in a particular area and that some work, perhaps an audit, could be done to see if any specific issues can be identified. In many ways, a contact from a whistleblower is just the beginning – it helps make investigations more targeted but it does not remove the necessity to investigate.

Anna Myers (originally from Canada) is a legal expert with over 15 years’ experience in the field of public interest whistleblowing and anti-corruption. She was Deputy Director and worked for nine years at Public Concern at Work, the UK’s leading whistleblowing authority, and in 2015-16 at the Government Accountability Project in Washington, D.C.. She has long worked with civil society, governments, and corporations in Europe, Africa, Asia, and North America to promote the value and importance of protecting whistleblowing in the public interest. She was consultant to the Council of Europe on the development of the Recommendation on the Protection of Whistleblowers and Explanatory Memorandum, and wrote the UNODC Resource Guide on Good Practices in the Protection of Reporting Persons in the context of the UNCAC. Anna is Director of the Whistleblowing International Network (WIN). She was a lecturer at IACA’s tailor-made training for the National Anti-Corruption Commission of Thailand 2014.

Please note some of this article has been adapted from a chapter written by Anna Myers for a book on whistleblowing published by the Serbian Information Commissioner in 2013 “Заштита узбуњивача“ (see http://www.poverenik.rs/en/publications-/studies. html). An English version of the chapter can be found at http://whistleblowingnetwork. org/other-resources/governance-and-democratic-accountability/protection-of-whistleblowers/.

[1] See, for example, Pištaljka (“The Whistle“), an independent journalist NGO based in Serbia – http://pistaljka.rs/. See also a blog piece written by the Editor, Vladimir Radomirović, explaining the background to Pištaljka and why being part of a whistleblowing network is valuable to the work of his organization.

https://whistleblowingnetwork.org/2014/10/20/why-we-need-networks-like-win/.

[2] Michel Foucault as quoted by Mansbach, A. (2011). Whistleblowing as Fearless Speech: The Radical Democratic Effects of Late Modern Parrhesia in D. Lewis and W. Vanderkerkove Whistleblowing and Democratic Values. E-book: International Whistleblowing Research Network, p. 15.

[3] http://www.coe.int/t/dghl/standardsetting/cdcj/Whistleblowers/protecting_whistleblowers_en.asp

[4] WIN founding members: Open Democracy Advice Centre, South Africa; Whistleblowers Network, Germany; Government Accountability Project, USA; Public Concern at Work, United Kingdom; Federal Accountability Initiative for Reform, Canada.

[5] PricewaterhouseCoopers. (2011). Global Economic Crime Survey 2010, p.13. http://www.pwc.com.