World Press Freedom Day - what can it mean for the protection of whistleblowers?

By Anna Myers, Executive Director of WIN

On the 3rd May, 2022, I had the honour of participating at a session entitled “Journalists and whistleblowers: a dynamic society to fight corruption” at UNESCO’s World Press Freedom Day 2022 Global Conference.
 
Organised by Leon Willems, Senior Advisor at Free Press Unlimited and Eduardo Bertoni, Representative of the Regional Office for South America at the Inter American Institute of Human Rights, they brought together an amazing line-up of experts to discuss the fascinating but often, all too fraught, relationship between journalists and whistleblowers.
 
The protection of journalists is vital and good investigations need sources.  And in this age of closing civil society space and the squeeze on well-resourced independent media, whistleblowers can cut through the noise and provide journalists the information they need.  This also means that journalists need to understand better the terrain whistleblowers must navigate before they even consider going public, and what they could lose if they do. 
 
At our session, Eduardo Bertoni, also a lawyer and freedom of expression specialist, presented a new paper he wrote for UNESCO on Journalism and Whistleblowing. He set out why journalists need to take the well-being of whistleblowers seriously now more than ever, and what steps they can take to protect their sources and themselves. This introduction set the scene for a fascinating hour of conversation.
 
Leon Willems spoke to Dr. Yasmine Motarjemi, a senior food safety expert who blew the whistle at Nestlé.  She described the reality of trying to raise public awareness of food safety problems with little help from a media industry that gave a powerful company the benefit of the doubt and failed to scratch below the surface of her story.  While some journalists were interested, very few had the support they needed to examine the case further and some had their stories pulled prior to publication.  Dr. Motarjemi has been a lone voice against a giant multi-national and while she explained she did not regret her actions for a moment, she could not in good conscience advise others to blow the whistle when the individual and professional costs remain so high. Dr. Motarjemi's took Nestlé to court and after 10 years of legal wrangling, finally won her case.  But as she says, she has lost her livelihood and those responsible are still in place with little reason to fear any repercussions for their conduct.

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...civil society has to remain vigilant to the erosion of free speech right around the world.

Leon then turned to the next speaker who explained how vigilant civil society has to be to the erosion of freedom of speech rights around the world.  Eni Mulia, is Executive Director at the Indonesian Network for Investigative Journalism and the driving force behind IndonesiaLeaks.  She explained how dangerous the Electronic Information and Transaction Law has been for free speech in Indonesia and the long campaign to get it amended.  Adopted in 2008, the law was intended to fill legal gaps in rapidly developing digital communications and guard against fraud in financial and legal transactions.  However, the law also criminalised on-line communication of “immoral”, defamatory, and hate speech.  Now it is being used to prosecute anyone who expresses a critical view.  Journalists, citizens, academics, and whistleblowers are being prosecuted and jailed.  As innocuous as the title of the law sounds, it is severely chilling free speech in Indonesia.      

This is not unlike other legal initiatives we have seen in recent years.  The problem arises when the laws overreach.  Typically, what happens is the range of ‘information’ the law is intended to protect is expanded beyond what is needed for its stated purpose, and the severity of the sanction against those who access, use, or disclose the information is increased. 

In the EU Trade Secrets Directive for example, the definition of a trade secret was extended to information described as “business know-how.” This is then claimed as “property” (typically by corporations) against all other interested parties, including the public.  It effectively reduces transparency in corporate conduct.  In the case of national security and investigatory power laws, greater authority to by-pass privacy, civil and free speech protections is given to government agencies, and thus they can pursue persons for a wider category of suspected offences with fewer safeguards against mistakes or potential abuse. Once these powers are extended, it is very hard to reign them back.
 
For our work at WIN, keeping an eye on the broad legal landscape is vital for the protection of whistleblowers.  We can never focus solely on laws dedicated to protecting whistleblowers and to do so would be negligent on our part.  Yes, whistleblower protection laws must be robust, but if, at the same time, access to information is increasingly restricted or criminalised, then whistleblowers and the journalists who work with some of them are taking greater risks in disclosing or investigating wrongdoing, no matter what the laws to protect them say.  And this does not bode well for the public good.
 

However, there is room for optimism. Maria Teresa Ronderos, a Colombian investigative journalist at the Centro Latinoamericano de Investigación Periodísta (CLIP) explained how the practice of journalism has evolved in recent years. Journalists must now work together to engage in large cross-border investigations and to handle the amount of data that can be leaked to them.  She described how important it is to protect sources during and after a story has run, having worked on some of the biggest corruption investigations to date, like the Panama Papers and Pandora Papers.  There is too much at stake for both the whistleblower and the journalist in running a story - in terms of legal, reputational, and even physical risks - for the traditional approach to working with sources to remain unexamined.  Often the issues whistleblowers reveal are too complicated or nuanced for the journalist to unravel on their own.  Maria Teresa urged journalists to view the relationship with sources as a collaboration and said that for this reason the motto for CLIP is “Nos faltas tu!”, we need you!

I agree. There will be points in the relationship between journalists and whistleblowers where differing interests must be taken into account.  This is not because whistleblowers and journalists do not want the same thing, they do!  They both want to hold power to account, to understand and reveal the facts of what is really happening and, one hopes, to help stop any further harm or damage.  But each party has additional interests - journalists must do their jobs independently and continue to write more stories; whistleblowers have to protect themselves, their families and their livelihoods.
 

Whistleblowing is essential to the public's right to know

While people who blow the whistle are often experts in their field of work, they are not experts in whistleblowing nor are they experts in how to be a “good” source for a journalist.  How, when and what a journalist writes can make a big difference to how well a whistleblower will survive the process of blowing the whistle.  It is up to the journalist to guide this relationship carefully - to explain both its limits and its opportunities and to consider the well-being of their source as a professional duty.
   
It is also up to us, at WIN, to give journalists the information they need to do this properly and for journalists to work with us for better legal protections for whistleblowers.  Importantly, WIN was set up to build the capacity of NGOs to ensure that whistleblowers have greater access around the world to independent advice and support.  We will continue to do so - with your help I trust - in the knowledge that this work is in the public interest and essential to protecting free and independent journalism around the world too.
 
Anna Myers is the founding Executive Director of WIN. She has worked in the field of whistleblowing for over 20 years - advising individual whistleblowers, employers of all sizes and sectors, and national and international policy makers.