Moving towards a worldwide law on whistleblowing

by Caroline Raat

It is not hard to believe that fraud, money laundering, corruption and human rights violations mainly take place ‘on the other side of the world’. But since we all live – depending on our perspective – ‘on the other side’, this paradigm is not very helpful when looking at integrity, wrongdoings and those who try to prevent and report them. This is especially so in a globalised society. Instead, it is time to acknowledge that people are people and that integrity violations take place all over the world. And that retaliation of reporters is universal: violators or organisations that failed to act on them do not like to be exposed. They are usually in a position where they can threaten whistleblowers, or worse. Violation and retaliation may vary in size and character, and in this blog, that common ground is our starting point. Whistleblowers need the best protection and legal and financial support. Not only for their sake, but because reporting wrongdoings is in the general interest.

When dealing with rule breaking that needs to be reported, what is abundantly noticeable is the power imbalance. Violators, whether they are persons or (departments of) organisations, have been brought in a position where they can act as they please and get away with it. Whether it is a multinational company bribing foreign regimes for an oil contract or to look the other way when rain forests are destroyed, a local government official bending the rules in order to get a building permit for a befriended entrepreneur, or a hospital manager trying to get rid of patient files in order to cover up medical errors: it comes down to them feeling entitled to do so ‘because they can.’ And because they try to facilitate and protect themselves and the people they feel related to.

This is not only illegal, but harmful since it excludes those who are not in the right network. Usually, they cannot fight these injustices because they lack means, evidence and an independent authority to go to, and they sometimes are not even aware of what is truly going on – at a glance, there seems to be nothing wrong with the permit for the local entrepreneur, and the patient files that have been mislaid. That is where whistleblowers step in: their position in the workplace gives them knowledge of true motivations, covert deals and paper traces. However, this knowledge leads to inner moral conflict. They feel like – and often are – excluded as well and they are regarded as difficult ‘spoilsports’, ‘crazy’ and ‘resentful’.

Incidents and full blown violations

If the organisation does not have an open culture or adequate reporting mechanisms, the whistleblower does not have much choice but to report externally. We are not talking about incidents here such as petty violations, which are typically committed by individuals from lower-level staff. Reporting this type of behaviour usually is not very problematic. Speak up systems work quite well in this domain.

The higher up the ladder violations take place and the more accepted and structural the behaviour is, the higher the risk of retaliation. This may take many forms, from threatening with violence, reputational harm, counter investigations, legal procedures and disciplinary sanctions; we’ve seen it all.

External reporting – to law enforcement, ombudsman-like structures, whistleblower authorities or the media – is seen as a threat by people in power. They will often do anything to prevent loosing face and position. They function in a network that deals with violations in a forgiving and covert manner, and that does not change the culture that facilitates wrongdoings in the first place. In these types of organisations, the whistleblower will lose and the wrongdoings will continue. In order to prevent that from happening, we need to protect whistleblowers.

From filthy jobs to normality

So far, whistleblower cases have been dealt with as regular labour disputes. There is a conflict; malfunctioning or health issue, and the reporter needs to go. Employers are quite successful in presenting whistleblower cases as such, and the judiciary, unfortunately does not always see through that. This is the reason why the success rate for whistleblowers and their lawyers is low. Sometimes reporters successfully state that their human rights – to free speech – have been violated. In both paradigms, the most difficult hurdle is the burden of proof. The reporter needs to give evidence that his retaliation was caused by his reporting. Since most employers simply deny this causal relationship, and paper trails of retaliation are hard to present, this is an impossible mission.

In the EU Whistleblower Directive, the burden of proof will be reversed. This is a big leap forward, not only in the protection of whistleblowers, but in the emergence of a specialised field of law. Other related questions that need to be examined include: when is a problem big enough to report? What standards do employers and employees need to meet, and how do reporters get compensated or rewarded for blowing the whistle? And what authority do we give government agencies dealing with investigation, supervision and protection?

This means that reporting and legal assistance to reporters can step out of the shadow of activism, ill-payment and suspicion. Specialised lawyers can do their job with pride and receive a fair salary, preferably paid for by an independent authority or the employer. They will no longer be regarded as conspirators, failures, naïve, crazy or any other terms they have been called over the last decades. Courts will have to listen, not only to the story of retaliation, but also to evidence of the wrongdoing itself in the public interest.

The author, Dr. Caroline Raat MA, LLM, is an expert in integrity and freedom of information issues.