This module is a resource for lecturers  

 

Whistle-blowing systems and protections

 

The need for effective whistle-blowing systems

The value of whistle-blowing cannot be overstated. A study from Australia showed that employee whistle-blowing was "the single most important way in which wrongdoing was brought to light in public sector organizations" (UNODC, 2015). There is accordingly no doubt that more needs to be done by legislators as well as public and private entities to encourage whistle-blowing and related reports of corruption; to handle reports of alleged corruption, wrongdoing and undue risks in a sound manner; and to provide appropriate levels of protection for whistle-blowers. Vanderkerckhove and others (2016, p. 4) suggest that whistle-blowing systems can be more successful if they provide a combination of reporting channels (e.g. directly to specific trusted persons, via a telephone hotline, or through an online channel); if the authorities make a point of communicating with whistle-blowers throughout the investigation process to maintain trust (a failure to be responsive may give rise to a perception that the wrongdoing is being covered up or that the investigation is not serious); and if information from reports is connected with information from other sources (such as surveys and audits).

 

Methods and channels for whistle-blowing

As insiders to an organization, whistle-blowers have specific knowledge, access and expertise which allow them to detect corruption or other matters of concern that might otherwise remain hidden. However, they are often in a difficult situation owing to their possible loyalty to colleagues and supervisors, contractual confidentiality obligations, and the risk of retaliation. A distinction can be made between open, confidential and anonymous forms of reporting (UNODC, 2015, p. 48):

  • Open reporting: Where individuals openly report or disclose information, or state that they do not endeavour to ensure or require their identity to be kept secret.
  • Confidential reporting: Where the name and identity of the individual who disclosed information is known by the recipient, but will not be disclosed without the individual's consent, unless required by law.
  • Anonymous reporting: Where a report or information is received, but no one knows the source.

In addition to these different forms of reporting, there are also different channels through which to report. The three main reporting channels are: 1) internal reporting; 2) external reporting to a regulator, law enforcement agency or other specific authority (see this Korean example); and 3) external reporting to the media or another public platform (such as in the Mossack Fonseca Papers case). Alternative reporting channels should, in principle, be available to any person working in a public or private organization, although there may be some sectors such as security forces that require specialized processes. Some countries have special provisions for reporting to a Minister or specially appointed legal advisor. Technology has also promoted web-based whistle-blowing channels. Some of these allow for two-way anonymous and encrypted communication between a whistle-blower and the recipient of the report.

 

Whistle-blower protection

Different jurisdictions define whistle-blowing differently. One clear distinction is the eligibility criteria for protection. For example, some countries, such as Argentina, Bosnia and Herzegovina and the United States, provide protection regardless of whether the reporting person is a public or private sector employee, while other countries have more limited scopes of protection. Some countries protect only formal employees while others also include contractors, consultants and volunteers.

Whistle-blower protection is crucial for the success of anti-corruption detection and enforcement and should be a key aspect of any whistle-blowing system. Owing to the substantial benefits to the parties involved in corruption, and the serious threat of criminal and other punishments to which these parties are exposed, persons who report these corrupt activities can put themselves, family members and colleagues at risk. Instead of admitting to corruption and mending their ways, persons implicated in corruption can choose to attack or retaliate.

A study of the experience of 72 external Korean whistle-blowers of workplace bullying, including a review of relevant literature, found frequent and significant bullying by supervisors and colleagues in the workplace and the creation of hostile work environments (Park, Bjørkelo and Blenkinsopp, 2018). The researchers drew two interesting conclusions from their study: first, "bullying by superiors had a close link to bullying by colleagues" and, second, "colleagues' understanding of the whistle-blower's reasons for acting had a significant effect on lowering the frequency of bullying by colleagues". Female whistle-blowers might also suffer more retaliation than male whistle-blowers do. A 2008 study on a United States Air Force Base with 9,900 employees, of which 238 were identified as whistle-blowers, found that more women reported poor performance reviews, verbal harassment, intimidation, and tighter daily activity scrutiny after whistle-blowing than similarly situated male colleagues (Rehg and others, 2008). Even if women had obtained a level of power or authority, this did not protect them from retaliation. While this study was conducted in a very particular, male-dominated context, and the results have not been replicated in other sectors, it provides interesting food for thought regarding how gender might play a role in the treatment of whistle-blowers and retaliation. For a discussion on the corruption-gender nexus, see Module 8 of the E4J University Module Series on Anti-Corruption and for a discussion on gender and ethics more generally, see Module 9 of the E4J University Module Series on Integrity and Ethics.

There are many other examples, including those of individuals who do not have the resources to survive without income or the ability to change jobs or careers. Retaliation against whistle-blowers is a serious threat to effective anti-corruption programmes, and it harms individuals and their livelihoods. In certain cases, such as when whistle-blowers are unjustifiably dismissed or discriminated against on the basis of gender or sexual orientation, retaliation can amount to a violation of human rights. Hence, a vital component of any plan to handle corruption reports is developing a protocol for maintaining confidentiality and protecting the people who report corruption. For more on the relationship of anti-corruption and human rights, see Module 7 of the E4J University Module Series on Anti-Corruption. Consider also the related discussion in Module 10 on barriers to citizen participation in anti-corruption efforts.

Retaliation against whistle-blowers can happen regardless of the channels they use to report on corruption, and so the relevant organization should provide protection. However, there are certain cases where providing protection is controversial. For example, reporting to the media as the first resort does not give the organization a chance to correct the problem and can therefore be problematic for the organization concerned. Therefore, organizations may not wish to provide protection in such circumstances and this may encourage such external reporting. Furthermore, protection for reporting to the media is usually provided only when specific legal requirements are fulfilled. Such legal requirements differ in different countries, and could depend upon: the seriousness of the reported matter; reporting according to certain requirements; and having previously made an internal report or a report to a regulator (see, e.g., section 10 of the Protected Disclosure Act 2014 of Ireland; section 43 of the Public Interest Disclosure Act of the United Kingdom; article 19 of the Law on the Protection of Whistleblowers Act No. 128/2014 of Serbia). If the disclosure or subsequent retaliation are brought before a court, the court will have to assess the matter on a case-by-case basis and balance the rights and interests of the different parties. International human rights standards, such as those enshrined in article 19 of the Universal Declaration of Human Rights (UDHR) and article 10 of the European Convention on Human Rights (ECHR), as well as the public interest will play a role. For a discussion on the jurisprudence of the European Court on Human Rights regarding article 10 of the ECHR and whistle-blowing see Nad (2018).

 

Financial incentives

Another contentious issue, which goes beyond whistle-blowers protection, is whether or not whistle-blowers should receive a financial reward. Financial incentives are used in the United States and South Korea, while many European countries refrain from such a practice. One example is Bradley Birkenfeld, the first international banker to report illegal offshore accounts held in Switzerland by United States citizens. His disclosures resulted in recoveries of $780 million in civil fines and penalties paid by UBS, and over $5 billion in collections from United States taxpayers. The Swiss Government was also "forced to change its tax treaty with the United States in order to turn over the names of more than 4,900 American taxpayers who held illegal offshore accounts" (National Whistleblower Center, n.y.). Mr Birkenfeld received a reward of $104 million. This financial incentive may have led to the revelation of widespread illegal activity, but this flurry of reports triggered questions about the propriety of paying for information. The pros and cons of financial incentives should be evaluated based on the circumstances of each jurisdiction.

 

The (ir)relevance of motivation

The motivations of whistle-blowers make for an interesting discussion. Whistle-blowers are often maligned and attacked as disgruntled employees, persons with a grudge against the company or opportunists seeking some personal monetary reward or fame. However, studies show that most whistle-blowers have motives such as integrity, altruism, care for public safety, justice and self-preservation (Kesselheim, Studdert and Mello, 2010). In any event, given the importance of whistle-blowing, should the motivation for reporting make a difference? Should it matter whether an employee who reports on a corrupt supervisor is content or disgruntled? Does it matter if the employee gets along with the supervisor or not? It seems that the focus should first and foremost be on the reported matter, and not on the nature or motives of the whistle-blower. Indeed, this approach has been adopted in several jurisdictions, with Ireland being the first country to recognize the irrelevance of the motivation for whistle-blowing in its law (section 5, subsection 7 of the Protected Disclosure Act 2014 of Ireland). For more information on the importance as well as the motivations of whistle-blowers, consider the Ted Talk How whistle-blowers shape history by Kelly Richmond Pope and the documentary Whistleblowers by Brave New Films.See also this survey of the University of Greenwich.

 
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