Good Practice in Whistleblowing Protection Legislation (WPL)

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Query:

“I am interested in good practices in law and practice for the protection of whistleblowers as provided for in UNCAC Art. 8.4, 32 and 33. Could you give some indications regarding model legislation or aspects to be considered for the development of whistle blower protection legislation? Further, do you know about good practices to implement such legislation especially from developing countries?”

Purpose: An increasing number of countries is adopting I am working in Bangladesh on UNCAC Whistleblowing Protection Legislation (WPL), to protect implementation. One national priority is to develop whistleblowers from both the private and public sector from occupational detriment such as dismissal, sound legislation and mechanisms for whistle- suspension, demotion, forced or refused transfers, blower protection. So far, they are non existent ostracism, reprisals, threats, or petty harassment. apart from money laundering offences. Good practice WPL includes adopting comprehensive free standing laws that have a broad scope and Content: coverage, provide adequate alternative channels of reporting both internally and externally, protect as far as Part 1: Best Practice Whistleblowing possible the whistleblower’s confidentiality and provide for legal remedies and compensation. As WPL is still in Protection Legislation its infancy, little is known yet on its impact and the Part 2: Good Practice in Implementing conditions of effective implementation. Whistleblowing Protection Legislation The UK WPL is often referred to as an effective model Part 3: Further Reading of legislation, with early evidence of impact in promoting internal disclosure of wrongdoing. However, its replicability to the specific context of developing Summary: countries who do not always have an institutional framework in place that supports the rule of law and a Whistleblowing protection is growingly recognised as a culture of transparency and accountability remains key factor to promote a culture of public accountability questionable. and integrity.

Authored by: Marie Chêne, U4 Helpdesk, Transparency International, [email protected] Reviewed by: Robin Hodess Ph.D., Transparency International, [email protected] Date: 1 July 2009 U4 Expert Answers provide targeted and timely anti-corruption expert advice to U4 partner agency staff www.U4.no

Good Practice in Whistleblowing Protection Legislation

Part 1: Best Practice Whistleblowing About 50 countries have adopted national laws on WB Protection Legislation (WLP) in one form or the other to address this situation. For example, Australia, Canada, France, South Africa, Why Does Whistleblowing Protection United Kingdom and USA have passed comprehensive Matter? legislations to protect whistleblowers in the public sector and sometimes in the private sector. Although

the scope of protection is limited to certain type of By revealing concealed information that is critically persons or offences, whistleblowing provisions have important to public good, whistleblowers provide an also be included in sectoral laws such as anti- opportunity to address public interest concerns before corruption laws, competition laws, corporation laws, harm is done. For example, Dr Yanyong’s disclosure public servant laws, criminal codes, labour and to the media of the spread of the SARS virus in 2003 employment laws, freedom of information acts, etc. raised awareness on the gravity and imminence of the public health threat. As dramatically shown in this case, There is also strong international pressure to adopt failure to address concerns raised by whistleblowers whistleblowing laws, and WP requirements have been may result in loss of lives, damage to reputation, and introduced in many international instruments, financial costs. encouraging states parties to adopt measures to

protect disclosures of wrongdoings. Most of these As employees are also more likely to detect requirements relate to anti-corruption instruments, such misconduct, fraud and corruption in the course of their as the Council of Europe Anti-Corruption Conventions, duties than outsiders, detection of wrongdoing heavily the Inter-American Convention Against Corruption, the relies on insiders’ tips and information1. Yet, employees African Union Convention on Corruption, the Anti- have the least incentives to report wrongdoing and, if Corruption Initiative for Asia-Pacific, the OECD they do so, often do it at considerable costs for their Guidelines, the Southern African Development careers, personal and professional lives. Inquiries into Community (SADC) Protocol, the United Nation tragedies resulting in losses of lives often reveal that Convention Against Corruption (UNCAC), etc. employees had known about health or safety risks, potential environmental problems, fraud, corruption, For example, Article 33 of the UNCAC requires states etc, but were too afraid to speak up out of fear of parties to adopt national laws to protect any person reprisals. In many countries, whistleblowing legislation reporting corrupt practices in good faith and on is passed in response to such scandals or disasters. reasonable grounds from any unjustified treatment. For examples, the US Sarbanes-Oxley act was adopted in the wake of the Enron scandal, while the UK Public Best practice legislation is starting to emerge with Interest Disclosure Act 1998 (PIDA) was influenced by regard to who is covered, which public interest a series of enquiries into a rail crash, a ferry accident disclosures are protected, procedures for disclosure, and the explosion of an oil platform. (Please see: the extent of protection, etc. The following section is http://www.corrupcion.unam.mx/documentos/investigaci mainly based on two recent papers that synthesise the ones/banisar_paper.pdf). state of knowledge on whistleblowing, “Whistleblowing:

International Standards and Developments” (David Banisar) and “Whistleblower Laws: International Best Practice” (Paul Latimer and A.J. Brown). (For sources please see Part 4 “Further Reading”)

1 A study conducted to identify the most effective Objectives of Whistleblowing mechanisms for detecting corporate fraud looked at 200 Legislation reported fraud cases in large U.S. companies between 1996 and 2004. The study found that fraud detection primarily Employees have the best access to information on relies on several non-traditional players (employees, media, illegal or unethical practice and are usually the first to and industry regulators) rather than more obvious actors recognise wrong doings. The overarching goal of such as investors or auditors. (Please see: whistleblowing legislation is to provide employees with http://papers.ssrn.com/sol3/papers.cfm?abstract_id=891482) a safe alternative to silence, and to empower

employees to report wrongdoing by providing adequate legal protection. A secondary benefit of WLP is to

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encourage public and private organisations to adopt whether perpetrated by the employer or other effective whistleblowing procedures and policies to fellow employees; foster a culture of transparency and accountability. - As opposed to personal grievance, there is More specifically, WLP has five major objectives: often a public interest dimension2 to whistleblowing, the wrongdoing often - Supporting public interest disclosure by representing a direct threat for the security, facilitating disclosure of wrongdoing; health or safety of others; - Protecting whistleblowers against potential - Wrongdoings can involve a breach of the law, retaliation; unethical practices such as fraud, - Ensuring that public interest disclosures are health/safety violations, and corruption and properly assessed, investigated and acted even in some cases, maladministration. They upon; are typically liable to cause harm to persons - Promoting a culture of transparency, integrity outside the organisation they originate; and accountability (symbolic value of the - Wrongdoings may be reported internally legislation); (through internal complaints channels) or - Preventing abuse and misuse of available externally (to law enforcement agencies, protections for personal advantage or members of parliament, the media or other vendettas against the employer. stakeholders).

Definition of Whistleblowing Increasingly, the literature excludes from the definitions the whistleblower’s moral standards, subjective or Whistleblowing generally refers to public interest ethical motives to focus more on his/her reasons to disclosure by employees about wrongful acts, illegal or believe – in good faith and on reasonable grounds - unethical conducts within their organisations. that there has been a wrongdoing.

Whistleblowing has many different dimensions and Scope of Application implications. As whistle blowing is not per se a technical term, there are no common legal definition of International standards limit whistleblowing protections this phenomenon. However, a common understanding to disclosures by employees of the public and/or private of the concept emerges from the various definitions that sector, as opposed to across the board protection to have been developed overtime. The UK’s Committee any member of the public. This is justified by the fact on Standards in Public Life defines it as “raising a that although members of the public can also concern about malpractice within an organisation”, experience reprisals if identified as whistleblowers, while the International Labour Organisation refers to employees require stronger legal protection as their “the reporting by employees of illegal, irregular, institutional connection to their employer makes them dangerous or unethical practices by employers”. Public especially vulnerable to retaliation. They are also more Concern At Work (PCAW) and the Open Democracy likely to access critical information worth blowing the Advice Centre (ODAC) speak of “the options available whistle. to an employee to raise concerns about workplace wrongdoing (…), from raising the concern with Public and Private sector disclosures managers, with those in charge of the organisation, with regulators or with the public”. There are big variations across countries of whose (http://www.pcaw.co.uk/) disclosures are protected. Some legal regimes restrict protection to employees only, while others extend These definitions highlight a number of key characteristics of whistleblowing:

- It typically refers to the disclosure of wrongdoings connected to the workplace, 2 Some authors argue that the law should protect disclosure of any wrongdoing and not only those that have a public interest dimension.

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protection to external consultants and contractors. - Anonymous disclosures are harder to Some countries such as the UK, New Zealand and investigate; South Africa have adopted a single disclosure regime - Anonymous disclosures may contribute to the for both the private and the public sectors while others deterioration of the social climate; limit protection to public servants or private employees. - It is easier to protect the whistleblower when The Japanese whistleblower protection act for example his/her identity is known; only covers private sector employees, while the - Anonymous disclosures may be suspected to Canadian or Public Servants Disclosure Protection Act be malevolent act to discredit a person or an 2005 only applies to disclosures by members of the organisation. Canadian federal public service and to a number of federal Crown corporations. The general international Some critics argue that whistleblowing laws encourage trend in this regard seems to adopt specific legislation employees to speak out and reveal their identity, for the public and private sector. leading them to believe mistakenly that they are protected, while they in fact become easier targets of As public sector functions can be outsourced to reprisals than if the law didn’t exist. In countries where contractors, another issue is whether to protect the institutional environment is weak, anonymous contractors’ disclosures. For example, the South disclosures may be the only reasonable option for African act excludes independent contractors from whistleblowers. In countries such as Sierra Leone and whistleblower protection, while the UK legislation Kenya for example, the Anti-Corruption Commissions protects contractors’ disclosures. Experts recommend run anonymous websites for reporting of fraud and that a “no loophole” approach to WPL should also corruption. include applicants for employment, contracts and funding as well as those who are formerly employed, “Good faith” disclosures unemployed or blacklisted and their families. In principle, the outcome, evidence and motive of the A recently published U4 Brief on whistleblowing whistleblower should not be of major significance with protection further recommends that protection should regard to protected disclosures with the view to also be provided to individuals who have not done a encourage reporting. Most recent legislation do not protected disclosure but are mistakenly suspected to require or invite whistleblowers to prove that their have done so as well as to individuals who have been allegations are true, and incriminating evidence should required to assist with an internal or external process be obtained only by competent investigatory agencies such as an inquiry or an audit as part of their duties. to avoid involving the employee inappropriately and/or compromise the official investigation. Disclosers should Anonymous and confidential disclosures be permitted to provide evidence, when it’s available by legal means in the course of their work, but they should Another issue relate to the treatment of anonymous not be encouraged to act illegally or improperly to whistleblower disclosures. Most legislations exclude provide evidence. anonymous disclosures while providing for the protection of the whistleblower’s identity. Some laws Most laws and international treaties only require the even prohibit anonymous disclosures. Anonymous whistleblower to report wrong doing in “good faith”, in reports are difficult to corroborate, hard to investigate other words that disclosure is based on “an honest and often impossible to remedy, while casting belief on reasonable grounds” at the time it was made. suspicions on the whistleblower’s unaccountability. However, some experts believe that this requirement Whistleblowing support groups such as the Public can however discourage disclosure as it focuses on the Concern At Work encourages public reporting of motives of the whistleblower rather than the reported wrongdoing with the view to improving internal work act itself. Some countries such as Malaysia or Sierra culture, stressing that: Leone are even stricter with anti-corruption laws stipulating that filing of a false claim may result in - Anonymity may provide a false sense of penalties. security, as are only a few number of people would typically be aware of the disclosed wrongdoing;

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Type of Disclosures External disclosure to an authorised body

The scope of protected disclosures can defeat the External reporting is an alternative to internal reporting purpose of the legislation by minimising the types of mechanisms. It usually requires that the whistleblower wrongdoings covered by the WPL. By nature, sectoral has exhausted internal disclosure or reasonably believe laws limit protection to the conducts covered by the it would have resulted in retribution. External authorised scope of the legislation. Comprehensive WPL usually bodies can include a wide variety of institutions, such adopt broader definitions of wrongdoing that apply to as public protectors, the Auditor General, the criminal acts, danger to health or safety and abuse of Ombudsman, etc. Some countries such as the UK and power. Most countries also set minimum standards on South Africa also allow disclosures to outside legal the level of importance of the wrongdoing before advisors or union representatives. Most sectoral laws granting protection. only authorise disclosures to a limited number of external bodies such as anti-corruption national National laws may also include provisions that relate to commissions. Another alternative is to create a central national scandals, or country specific issues that initially agency for public interest disclosure such as Canada’s led to the adoption of the law. For example, South Office of the Public Sector Integrity Commissioner. In Africa includes unfair discrimination as part of the some countries, such approach may not be the most offences covered by WPL. Some countries such as appropriate as there is a higher risk of capture than India or Canada also include maladministration as part where there are several protected reporting options. of the behaviours covered by WPL. External disclosure to the public Best practice is to promote and protect free expression with “no loopholes” and cover a wide variety of The final and most visible form of reporting is disclosure behaviours. In other words, protected disclosures to the media. Most legislations deal with media should cover any wrongdoing, including disclosure of disclosures as a last resort option, if a series of abuse of authority, violation of laws and ethical conditions have been satisfied. In many cases, media standards, danger to public health or safety, gross disclosures are protected where the matter concerns a waste, illegality and mismanagement. significant and urgent danger to public health and safety, or where the whistleblower has made internal Disclosure Procedures complaints to no avail. Some critics see this approach as too restrictive, undermining free speech and the There are many avenues for reporting wrongdoing, critical role that the media can play in promoting public from raising the concern with the direct manager, accountability and transparency. Some authors argue senior/higher level management, internal hotlines, when WPL does not protect media reporting, this can outside agency or the media. There are three major be interpreted as an indication that WPL aims more at categories of disclosure: domesticating dissent rather than acting against wrongdoers. They further stress that disclosure to the Internal disclosures media or members of parliament should be encouraged, respected and protected as a fundamental They are in theory the primary and most appropriate democratic corner stone. channel for reporting and the law should encourage organisation to set up appropriate reporting structures. Too prescriptive laws in this regard may undermine the In principle, a well run organisation has an interest to very purpose of the law and encourage anonymous or know about potential wrongdoing with the view to informal releases, while unlimited disclosures may correcting it. People are also more likely to report undermine efforts to promote internal resolution of wrongdoings within an organisation when there are problems and give the employer a chance to correct the appropriate and trusted structures in place that offer wrongdoing. The general trend in this regard is to different reporting options for individuals and guarantee promote internal disclosure and resolution by reporting absolute confidentiality. Most recent laws also require in the first instance to the managers, assuming that organisations to adopt procedures or policies for an whistleblowing procedures are in place, such as initial handling of disclosures. encouraged by the UK PIDA. PIDA encourages this approach by making internal reporting the easiest way to obtain legal protection as well as by making more

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likely that a subsequent disclosure of the same International standards and Developments” for a information to an outside body will be protected. comprehensive account of the legal risks involved).

However, in some cases it may be impossible to In many contracts of employment, legal barriers include disclose to direct employer and WPL must provide for confidentiality clauses or duty of loyalty, under which an other reporting channels, especially when there are no employee should not harm the employer's interests in internal reporting procedures and policies in place any way. Many public service acts therefore stipulate within the organisation. Wider public disclosures that public servants are not allowed to disclose any (including to the media) are generally more readily confidential information or information collected in the protected where there are no or ineffective whistle course of their professional duties. Violation of duties of blowing arrangements and other channels of reporting loyalty and confidentiality can potentially lead to have been exhausted. disciplinary actions, including dismissals or suspensions. If the employee reports a wrongdoing Nature and Extent of Protection directly to the press or any third party, such behaviour can also constitute a breach of the employee’s One of the major potential deterrents for reporting obligations and justify termination or liability for corruption or other wrongdoings is the fear of reprisals. damages.

The 2007 US National Business Ethics Survey Most countries also have secrecy laws prohibiting conducted by the Ethics Resource Centre found that disclosure of state and military secrets, whether by 36 % of the employees interviewed that did not report insiders or outsiders such as journalists. A 2007 OSCE corruption did so because they feared retaliation. review found that nearly half of their state members (Please see: https://www.ethics.org/research/nbes- imposed legal liability on journalists who obtained or order-form.asp?) published classified information. (Please see: http://www.osce.org/documents/rfm/2007/05/24250_en. Retaliation can include a wide range of practices and pdf) disciplinary actions such as dismissal, suspension, demotion, denied promotions, forced or refused Libel and defamation laws can also be used to deter transfers, wage garnishment, etc. But reprisals can also disclosures, especially in countries where the judiciary take more subtle forms that may affect employment is not independent, justice decisions can be influenced opportunities and working environment, such as and court systems can be used to control opposition. awkward rosters, request for excessive documentation, petty harassment, harsh treatment by other employees Best practice should protect whistleblowers from civil and other forms of mobbing. Last but not least, and criminal liability if they make a protected disclosure. whistleblowers may also experience various forms of In particular, this includes relieving whistleblowers from victimisation or stigmatisation from the employer or civil liability for defamation or breach of confidentiality other fellow employees for being a trouble maker, and statutory secrecy provisions. Some WPL provide disloyal to the organisation. absolute privilege to whistleblowers against defamation but not all of them override the duty of confidentiality. The before mentioned study reviewing 200 fraud cases Whistleblowers should also be protected against in the US between 1996 an 2004 confirms that sanction for misguided reporting. employees’ fears of reprisals are justified to a large extent. In 82 % of the cases where the employee was named, employees reported that they were fired, quit Protection of employment status under duress or had significantly altered responsibilities as a result of bringing the fraud to light. Many of them As whistleblowing usually comes at very high further stated that if they had to do it over again, they professional costs, one of the most important wouldn’t. protections to provide relates to the conditions of employment. Whistleblowers should be protected from Civil and criminal indemnity dismissals, suspensions, disciplinary and other forms of workplace sanctions and discriminations. Protection should be broad enough to cover any retaliation means, There are significant legal obstacles to public including more subtle forms of discriminations and petty disclosure of information. (Please see “Whistleblowing: harassment. The South African act for example

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provides an extensive list of prohibited harms. As in public sector, banking or accounting, while there are some cases of retaliation, the only safe option maybe also mandatory reporting requirements in many areas relocation and WPL best practice should include of public concern such as child abuse or anti-terror entitlement to relocate. legislation.

The law should also provide effective avenues for However, this approach is not promoted by all restitution and legal redress for any detriment suffered stakeholders as best practice. The Bristish Standard as a result of the disclosure. Whistleblowers should be Institute for example recommends against requiring entitled to sue the person or body responsible for employees to blow the whistle, arguing that this detriment. Legal remedies can include injunctions to strategy is unlikely to increase confidence in reporting return to employment or transfer to comparable jobs. If requirements or foster a culture of transparency and the whistleblower suffered harms that can not be openness. remedied by injunctions, the law should also provide for adequate compensation, covering all losses. Rewarding Whistleblowing

Burden of proof Another issue which is often debated within the framework of whistleblowing is whether employees An important issue in WPL relates to the burden of should be rewarded for blowing the whistle. In the US, proof. It is obviously very difficult for the employee to the qui tam provision of the False Claims Act allows prove the fact that retaliation was a result of making the private individuals to bring civil cases against entities disclosure, especially as many forms of reprisals who have submitted false claims to the government. maybe very subtle and difficult to establish. Best The whistleblower who brings the case to the practice in this regard involves reversing the burden of government’s attention (and their lawyers) can win a proof for claims of retaliation. It should be assumed substantial portion (15-30%) of the final settlement or that retaliation has occurred where disciplinary action judgment – an average of US$ 46 million, according to can not clearly be justified on management grounds the above mentioned study – assuming that the unrelated to the fact of disclosure. The South African misconduct disclosed is proven, followed up and legislation stipulates that dismissal after whistleblowing successfully prosecuted. The above mentioned study is deemed to be “automatically unfair dismissal”. investigating 200 cases of corporate fraud in the US indicates that these types of monetary incentives had a It is however important to note that the employer’s right significant impact on the propensity to report. In South should be protected as much as the whistleblower’s Korea, the Anti-Corruption Act allows for individuals with regard to the right of the defence and to a fair trial. reporting corruption to recover up to 20% of the recovered fraud proceeds. Mandatory Reporting However, many experts are sceptical with regard to Another issue with regard to WPL relates to making providing monetary incentives to whistleblowers, reporting of wrongdoing mandatory. The recently arguing that such provisions may detract from the published U4 Brief “Making whistleblower protection public interest principles of the legislation and pervert work: Elements of an effective approach” argues that the whistleblower’s motives to report. aid and all other public organisations should encourage staff to report misconduct as part of their legal and Part 2: Good Practice in Implementing professional duties, with WPL supporting the Whistleblowing Protection Legislation implementation of such strategy. Many public institutions have already adopted such an approach in The adoption of WPL is a relatively recent trend and codes of conduct for public officials. The Council of very few countries have carried out in-depth reviews of Europe code of conduct for example stipulates that their legislation or assessed their level of public officials should report to competent authorities if implementation. David Banisar concludes his review of they are aware of breaches of the code by other WPL by noting that experience with implementation has officials, while the organisation should ensure that been mixed so far, and WPL does not seem to work as employees suffer no prejudice for reporting well as anticipated. While the UK PIDA is credited to be wrongdoing. Increasingly, a duty to disclose any one of the most successful legislations in terms of wrongdoing is being introduced in sectors such as awareness of the law as well as system of oversight

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and appeals, cases of reprisals and discrimination the various whistleblowing acts, but there was not a against whistleblowers continue to be reported in the single prosecution as of 2003, as the agencies UK. However, some progress has been recorded with responsible for implementing the laws often did not see greater acceptance and recognition of whistleblowers, their role as initiating prosecutions.3 and an increased number of companies adopting whistleblowing procedures. It is critical to determine to Most comprehensive laws usually appoint a public body what extent such model legislation can be replicated to with some oversight role to assist whistleblowers with the specific challenges developing countries face. legal advice, receive and investigate complaints of wrongdoing. In Canada, for example, the Public Sector Factors Influencing WPL Integrity Commissioner receives complaints, Implementation investigates wrongdoing and reports of reprisals, and issues recommendations. In the US, the Office of the Legal Process Related Obstacles to Special Counsel has been established as an Effective Implementation independent federal investigative and prosecutorial agency. However, enforcement of the legislation seems There are many law related factors that can impede to face major implementation challenges, as indicated effective implementation of WPL. As a first condition, by several reviews conducted by the Congress and the victims of retaliation need to be aware of the relevant General Accounting Office. Over a period of seven laws to determine deadlines and means of complaining. years, 96% of whistleblowing cases were backlogged, In many countries, low levels of awareness of the law and many had been dismissed for lack of information. make it difficult for whistleblowers to seek legal redress. Other countries have preferred to rely on a number of In the US for example, effective protection is hampered existing institutions such as the Ombudsman, courts by the patchwork of laws governing whistleblowing, and tribunals or national Anti-Corruption Commissions. according to the subject matter and the state in which it arises, with varying deadlines (some deadlines are as While it is recommendable to appoint an oversight body short as 10 days), depending on the nature of the to receive, investigate and manage whistleblowing offence or the competent jurisdiction. cases, this approach may duplicate existing complaints handling arrangements already in place and require In some cases, WPL are not comprehensive enough to establishing appropriate mechanisms to adress cover specific offences or are relatively recent, coming coordination challenges. Establishing a single oversight to play after disclosures have been made and reprisals body also involves higher capture risks that may have begun. When retaliation has occurred, it is also undermine the independence of oversight. Best often a very challenging task to provide clear cut practice in this regard suggests that the oversight evidence of reprisals, especially with regard to minor agency should not have exclusive jurisdiction over forms of discrimination or petty harassment. whistleblowing related matters. Responsible companies can afford expensive legal advise, while employees are usually in a more More generally, to promote effective implementation of vulnerable position, pursuing the case alone, with fewer WPL, the law should: resources and no organisational back up. - Promote awareness raising measures Some WPL deal with retaliation as a matter arising in targeting both employees and the general the employer/employee relationship rather than as a public to support cultural shift in attitudes criminal offence. The UK PIDA’s experience in this towards whistleblowing; regard seems to indicate that the resolution of cases by - Establish a monitoring and review relevant tribunals has proven more effective than when mechanisms to assess progress in brought in jurisdictions where criminalisation applies. implementation or lack of thereof.

Enforcement and Oversight Mechanisms in Place

3 Effective implementation also depends on the See “Illusions of whistleblower protection”: http://www.uow.edu.au/~bmartin/pubs/03utslr.html institutions in place to ensure enforcement. In Australia for example, many disclosures had been made under

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Institutional, Economic and Cultural the propensity to report. Broad consultation at the law Environment development stage may be advisable with the view to meeting the legitimate concerns and interests of the Whistleblowing protection laws can not be detached various stakeholders. from the local practices, as well as cultural and institutional environment in which they are The Role of Civil Society implemented. A 2005 paper (Please see: Part 4 Further Reading) on the replicability of WPL to the African Civil society can play a supportive role in promoting context challenges the replicability of whistleblower effective implementation of whistleblowing laws. Civil concepts into the developing world. society groups offer legal advice to employees on whether and how to blow the whistle and accompany The prerequisite for effective whistleblowing protection them along the process. They can also contribute to is a legal and institutional environment that supports address resistance to WPL through awareness raising, democratic values of transparency, accountability and training and advocacy on issues of accountability, the rule of law. The best WPL are unlikely to make a transparency and integrity. For example, Public difference in countries which have a bad record on Concern at Work (PCaW) in the UK has played an protecting the freedom of information, freedom of important role in putting whistleblowing on the expression and anti-corruption. The implementation of governance agenda and in developing legislation in the WPL also implies a strong and independent judiciary UK and in South Africa. that have the resource, capacity and independence to effectively prosecute whistleblowing related offences. The South Africa Case This is not often the case in developing countries. Legal Process The economic context is also likely to have an impact on the propensity of employees to report wrongdoing. In South Africa, the Protected Disclosure Act (PDA) Where unemployment rates are very high, legal was passed in 2000. Whistleblower protection was protections may not provide sufficient guarantees for originally a section of the Open Democracy Bill. Based employees to overcome the fear of reprisals and put on recommendations made by the Institute of Security their job at risk by reporting misconduct. Studies (ISS) and the comparative experience of Australia and the UK, it was finally decided to pass it as The local cultural environment can also play an free standing law in order to give it additional visibility important role in promoting whistleblowing or not. In and make it easier to promote. A draft bill was prepared many countries, there are mixed representations of with the support of PCaW, extensively drawing on the whistleblowers who are either perceived as heroes or UK Public Interest Disclosure Act. The experience of traitors. In countries emerging from civil war, conflicts South Africa is exemplary for the involvement of civil or authoritarian regimes such as South Africa, there is society in the design of the law, which was able to often a stigma attached to reporting others’ actions, influence the scope and content of WPL. inherited from the use and abuse of informants during the previous regime. In other countries such as France, The South African legislation goes further than the whistleblowing is strongly condemned as an act of American and Australian laws by making provisions for denunciation and betrayal. Whistleblowers can also be procedures to protect employees both in public and easily associated with informers who are usually private sector from occupational detriment who disclose involved in unethical behaviours and receive favours or information of unlawful or corrupt behaviour. remuneration for disclosure, using disclosure as a way Disclosures have to be made according to the specific to reduce liability either voluntarily or through coercion. procedures, including to a legal representative, to an At another level, the internal culture of the organisation employer, to a minister or provincial member of the can also stigmatise the act of reporting, as an act of executive council or to a specified person or body (such treason and betrayal. as the public protector of auditor general). The act is not retroactive, and whisleblowers suffering The introduction of whistleblowing legislation can occupational detriment for disclosing before 2000 are therefore only be effective when it is tailored to the not protected. specific circumstances of the country and takes into account the various country specific factors influencing

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Evidence of Impact Whistleblower laws: International best practice Early evidence of impact of the PDA – by looking at (2009) various criteria such as level of disclosure, reported This paper provides an analysis of WPL legislation cases of reprisals, the introduction of whistleblowing across the world, and identifies several emerging procedures within organisation, staff awareness of the issues for consideration. law, etc. – includes: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=13 26766 • While there has been a steady increase of reports made to the anti-corruption hotline, Whistleblowing around the world: Law, culture and there have been very few cases of reprisal practice (2004) brought before the courts, which is partly This ODAC and PCaW publication examines American, attributed to the lack of legal assistance for Australian, British, Japanese and South African cases brought under the Labour Courts. legislation. It looks at what encourages and • There are indications that private sector discourages legitimate whistleblowing in different organisations are increasingly introducing cultures and evaluates the different policy models. It reporting procedures. Studies conducted by considers the roles of employers, the state, the media, KPMG indicate that the rate of organisations the law and civil society and offers practical advice. having a policy in place has risen from 24 % http://www.pcaw.co.uk/law/wbaroundtheworld.htm to 41 % between 2001 and 2005. • A 2007 study by ODAC found that only 31 % Making whistleblower protection work: Elements of of the respondents had heard of the PDA. an effective approach (2009) • In spite of legal protection offered by the PDA, Effective whistleblower protection (WBP) is seen as an 60% of the individuals reporting corruption essential management strategy for strengthening were unwilling to disclose their identity to the accountability, responsibility, and good governance. hotline run by the Public Service Commission. This U4 Brief argues that aid organisations and all other • There is still cultural resistance to public organisations need to encourage staff to regard whistleblowing. According to ODAC studies, whistleblowing as their legal and professional duty, and while 70% of the population supports WPL, 30 to report misconduct and corruption to a proper % still perceive whistleblowers as authority so it can be dealt with. “troublemakers”. http://www.cmi.no/publications/file/?3197=making- (Please see: “Whistleblowing: International standards whistleblower-protection-work and developments”) Whistleblower protection: Is Africa ready? (2005) From the literature review on WPL it emerges that while This article critically examines propositions driving the the introduction of WPL is a growing trend worldwide, exportation of Western whistleblower concepts into the little is known yet on the effectiveness of existing developing world. Specifically it attacks the prevailing legislation and what works and doesn’t work in practice to promote a whistleblowing culture in specific contexts. view that public interest disclosure is somehow a More research is needed to assess the conditions of culture-free, or at least a culture-muted phenomenon, effective implementation in developing countries. governed by a set of rules and conventions detached from local histories and practices. The article concludes Part 4: Further Reading that this exportation is in the spirit of neo-colonialism and issues a note of warning about the dangers of Whistleblowing: International standards and dispersing western conceived forms of corruption developments (2006, revised 2009) reporting to Africa. This study reviews the experience with WPL across the http://espace.library.uq.edu.au/view/UQ:74712 world, looking at emerging international standards and latest developments and laying the foundation for assessing their effectiveness. http://www.corrupcion.unam.mx/documentos/investigaci ones/banisar_paper.pdf