A lot has been written and said during the past year about protecting whistleblowers. International legal instruments require countries to protect people prepared to report wrongdoing within their organizations; however, we have yet to see any significant increase in either the number of whistleblowers coming forward or in the quality of their reports.
Is there a good explanation for this?
This situation is likely the result of several factors:
- in some countries whistleblowing is still considered to be a negative and, especially in post-communist countries, akin to betrayal or denunciation in favour of the ruling political force,
- potential whistleblowers are not fully aware of existing reporting systems and the protection they can reasonably expect,
- people do not know what rights and obligations they actually have as whistleblowers,
- people see very little substantive reaction to whistleblower reports within their organizations,
- people see whistleblowers facing (often severe) hardship as a result of their actions,
- people are simply afraid of doing it.
Raising awareness and motivating potential whistleblowers requires nothing more than a higher level of engagement from governments and private entities. However, that alone will not address all the problems, particularly the most important one – the lack of uniform standards to protect people “blowing the whistle”.
If the standards are not clear, what should we tell people when they ask simply how we will help them if they run into a problem due to their report or complaint?
There have been many studies of best practice in this area, but they still differ significantly from each other. One of the most recent and exhaustive studies was produced by the OECD in March 2016 (Committing to Effective Whistleblower Protection); unfortunately, even in such a comprehensive document as this, it is difficult to find general guidelines for the protection of whistleblowers. Being mindful of all the difficulties related to generalizing about complicated issues such as whistleblowing, it is still possible to identify some common elements of the effective whistleblower systems in practice.
Analysis of various national legislations and of functioning whistleblower protection systems shows that the following elements should be considered as prerequisite for an effective, practical whistleblower system:
1. an effective mechanism for reporting, which must:
- be technically functional (post boxes, telephones, emails, …),
- enable whistleblowers to protect their identity,
- when warranted, offer a reward for blowing the whistle, although in some countries rewarding whistleblowers can have an adverse effect;
2. an effective and transparent mechanism to record and track the course of any activity related to a whistleblower’s report: whistleblowers (and those connected or affected) have to see that somebody is reacting to their reports and that perpetrators are being sanctioned;
3. an effective mechanism for the protection of whistleblowers: ideally, a whistleblower’s identity would remain protected. However, if that is not possible or does not work, there are plenty of other possibilities to afford them protection:
- transfer to another job and/or position,
- transfer to another unit/city/country,
- provide physical protection (encompassing family members),
- shift the burden of proof away from them,
- provide free legal assistance in any court proceedings,
- provide compensation for any harm or damage incurred;
4. a mechanism for sanctioning mala fidae reporting: reporting that is not done in good faith or has no credible basis has to be dissuaded, therefore, it could be useful to be able to identify these false whistleblowers;
5. effective communication to all potential whistleblowers on the existence of all the systems: it is not enough to establish these systems, people have to be aware of their existence and how they work and to be regularly reminded of the same;
6. a willingness on the part of potential whistleblowers to really blow the whistle: people must realize that blowing the whistle on something bad is good and, therefore, they have to be adequately educated.
It is not enough if all those elements exist in theory only, they must be fully implemented and accessible in practice, too. All too often, even with the best theoretical systems, whistleblowers have paid a heavy price for their decisions. We should not forget that whistleblowers are not virtual characters, they are flesh and blood human beings!
Whistleblowing is mentioned in several international legal instruments, including the UN Convention against Transnational Organised Crime, UN Convention against Corruption, the OECD’s Recommendation for Further Combating Bribery of Foreign Public Officials in International Business Transactions, the Council of Europe’s Convention on the Manipulation of Sports Competitions, etc. Therefore, it is difficult to understand why none of those legal instruments gives any instruction or guidance on how to effectively protect whistleblowers.
Are there any particular reasons for the lack of such a fundamental provision?
Whistleblowing is a concept that has not always been welcomed or considered useful. Although there are no countries saying they will not protect whistleblowers, the latest study from the OECD’s Working Group on Bribery “The Detection of Foreign Bribery” (http://www.oecd.org/corruption/the-detection-of-foreign-bribery.htm) shows that only a third of its members have satisfactory legislation in place to protect whistleblowers. Consequently, only two per cent of all cases of foreign bribery were uncovered as a result of a whistleblower. Significantly, we should not forget that we are talking about the most developed countries in this area!
So, too many countries are still only talking the talk and not walking the walk.
There are many different reasons for that: no country is willing to protect absolutely all whistleblowers, especially if they blow the whistle on something considered an issue of national security; some countries are afraid to admit that their systems are not working; others have no inclination to change existing procedures while there are some that are convinced that their labour laws are enough to protect whistleblowers. Sadly, some of the most important international organizations, such as the UN, are representative of how not to protect whistleblowers. This has to end or else there is no sense in continuing the debate about whistleblowing. Each individual whistleblower is a human being, potentially making a large sacrifice in order to help us fight all kinds of social ills. Therefore, it is unequivocally our obligation to help them and we can only do that by instructing countries not only to protect them but also how to! Hopefully, it is only a matter of months before minimum international standards in this area are developed. Following that, countries will have no other choice than to really protect people they say are already protected…
Chair, OECD Working Group on Bribery