30/12/2018 – WIN is pleased to highlight this blog by Tom Devine, Legal Director of the Government Accountability Project (GAP). GAP is one of the co-founders of WIN and has been working with WIN and WIN’s members and associates to promote robust and sensible whistleblower protections in Europe. The draft directive offers an opportunity for Europe to lead the way internationally. However, there are some serious pitfalls in the current proposal and the risk of even greater problems if some of the more damaging political counter-arguments are accepted. This blog was originally published by Eurocadres on Whistleblowerprotection.eu on 14th November 2018.
The European Union’s whistleblower protection directive is in a state of flux – key political battles are being fought right now. The whistleblower proposals, as they currently stand, have several Achilles heels tucked into the directive’s fine print.
If not taken forward in the right way this legislation could shrink freedom of speech rather than expand it, hence the high stakes of these ongoing political battles.
My hope is that the political compromises that will have to be made do not weaken protection against retaliatory action and the right to disclose. Even if compromises are necessary for those who fear malicious whistleblowing accusations, suppressing false statement does not require suppressing freedom of speech.
The proposed legal requirement to report everything to the employer whose organisation abused its power is extremely problematic. Especially if you then have to wait months before you can contact authorities or law enforcement agencies about the misconduct and then wait up to 9 months after the initial report, before going public. All this would make the directive counter-productive leaving whistleblowers largely defenceless unless they guess right about proposed subjective exemptions; and providing the alleged wrongdoer an enormous head start in terms of destroying information, intimidating witnesses and affecting a cover-up. This provision would fuel the obstruction of justice in a piece of supposedly anti-corruption legislation, while worsening the situation for whistleblowers, who are more likely to stay silent under these circumstances.
The current proposals require nations to have strict penalties for malicious or abusive reporting. This is problematic in that the legal definition of malicious or abusive reporting is so broad that it includes anything that is insulting. In effect, whenever you blow the whistle, you are “insulting” the person who may have engaged in misconduct. It would mean almost every whistleblowing disclosure would be vulnerable to retaliatory litigation.
Companies would then switch from firing whistleblowers to filing multi-million Euro lawsuits or even criminal cases against them. These cases could claim that those reporting wrongdoing have insulted and abused them. In such a scenario whistleblowers are again less likely to come forward. If there is a chilling effect from getting fired there is a freezing effect from facing imprisonment or a multi-million-dollar legal judgment.
This month, two of WIN’s co-founding member organisations hit major milestones. The Government Accountability Project (GAP) in Washington DC held a gala on 15th November to celebrate 40 years of pioneering work defending whistleblowers through the courts, the media and in the public domain. At a reception in the House of Commons on the 14th November, Protect (formerly Public Concern at Work) celebrated 25 years’ running a free legal advice to whistleblowers and working hard to create safer and more responsive workplaces throughout the UK.
It is fantastic that these organisations are continuing to work hard to make whistleblowing work in the public interest. In fact, like so many small but mighty NGOs, they are so busy they rarely have the time to explain clearly the importance of the work they do. This is something that WIN aims to change.
As part of this effort, WIN is delighted to share this short film made by Protect for its 25th anniversary, explaining what they do and providing an insight into their challenging but essential work with whistleblowers. While every organisation working in the whistleblower protection field is unique, Protect’s mission is shared by many of those participating in WIN – to ensure whistleblowers are safe to speak up, their messages are heeded and the public interest is protected.
Issued today 31 August 2018
We, the undersigned, join the Government Accountability Project in expressing our concern about the decision of the Dutch Government to award the 2018 Human Rights Tulip to outgoing UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, on 3 September 3 in The Hague. Our concerns are based on the responses to individual OHCHR whistleblowers who disclosed information about serious human rights violations, including the sexual abuse of children by French peacekeeping forces in the Central African Republic. We urge the Minister to reconsider proceeding with the award until the UN High Commissioner resolves the outstanding cases of retaliation against the publicly vindicated whistleblowers in his own office.
Pištaljka (“The Whistle”), Serbia
Open Democracy and Advice Centre (ODAC), South Africa
Transparency International Netherlands, Netherlands
Riparte il futuro, Italy
Centre for Free Expression Whistleblowing Initiative, Canada
Transparency International Ireland, Ireland
The Ethicos Group, Australia
Speak Up, Speak Out Ltd., United Kingdom
See WIN letter to Dutch Foreign Affairs Minister including press release from the Government Accountability Project.
01/08/2018 – WIN is delighted to publish this GAP blog on the proposed changes to the SEC whistleblower reward program rules. The piece highlights some of the pros and cons of financial rewards or “incentives” to individuals who report wrongdoing in the financial sector. Those who report to the SEC can come from any company listed on the US Stock Exchange, which means whistleblowers approach the SEC from all around the world with information on corporate wrongdoing. This international reach along with the successful and high profile prosecutions the SEC has been able to mount against companies who breach SEC rules, and the high monetary value of some of the rewards paid out to whistleblowers, has sparked the interest of financial regulators in other jurisdictions in the concept of financial incentives as a means to increase their regulatory effectiveness.
Financially rewarding or offering bounties to those who can provide specific regulatory or criminal information is often juxtaposed against the compensation that should be provided to whistleblowers for any losses they suffer when speaking out about a range of wrongdoing. Though rewards and compensation are both financial in nature, they clearly serve different ends. Likewise other tools—also developed in the US system—that specifically empower whistleblowers by actively engaging them in the resolution of the wrongdoing or in holding the wrongdoers to account, as in the US False Claims Act approach to tackling fraud from government or the rules governing how the US Federal Office of Special Counsel reviews investigative findings with whistleblowers, are often overlooked in the “rewarding whistleblowers” debate.
WIN will continue to host discussions and debates on these issues (and more!) to encourage wider and better informed debate on good practices in promoting public interest whistleblowing and protecting whistleblowers around the world.