Whistleblower Protection and the Fight against Corruption
- Whistleblower protection is essential to encourage the reporting of misconduct, fraud and
corruption. The risk of corruption is significantly heightened in environments where the reporting of
wrongdoing is not supported or protected. This applies to both public and private sector environments,
especially in cases of bribery: Protecting public sector whistleblowers facilitates the reporting of
passive bribery, as well as the misuse of public funds, waste, fraud and other forms of corruption.
Protecting private sector whistleblowers facilitates the reporting of active bribery and other corrupt acts
committed by companies.
- Encouraging and facilitating whistleblowing, in particular by providing effective legal protection
and clear guidance on reporting procedures, can also help authorities monitor compliance and detect
violations of anti-corruption laws. Providing effective protection for whistleblowers supports an open
organisational culture where employees are not only aware of how to report but also have confidence in
the reporting procedures. It also helps businesses prevent and detect bribery in commercial
transactions. The protection of both public and private sector whistleblowers from retaliation for
reporting in good faith suspected acts of corruption and other wrongdoing is therefore integral to efforts
to combat corruption, promote public sector integrity and accountability, and support a clean business
environment.
- International instruments aimed at combating corruption have also recognised the importance of
having whistleblower protection laws in place as part of an effective anti-corruption framework.
Whistleblower protection requirements have been introduced in the United Nations Convention against
Corruption, the 2009 OECD Recommendation of the Council for Further Combating Bribery of Foreign
Public Officials in International Business Transactions (Anti-Bribery Recommendation),
the 1998 OECD Recommendation on Improving Ethical Conduct in Public Service , the Council of Europe
Civil and Criminal Law Conventions on Corruption, the Inter-American Convention against Corruption,
and the African Union Convention on Preventing and Combating Corruption. Such provisions have
strengthened the international legal framework for countries to establish effective whistleblower
protection laws.
- Clear legislation and an effective institutional framework are in place to protect from
discriminatory or disciplinary action employees who disclose in good faith and on reasonable
grounds certain suspected acts of wrongdoing or corruption to competent authorities.
Examples of best practices in support of this principle could include, inter alia:
- Enactment of dedicated legislation in order to ensure legal certainty and clarity, and to
avoid a fragmented approach to establishing whistleblower protection;
- Requirement or strong encouragement for companies to implement control measures to
provide for and facilitate whistleblowing (e.g. through internal controls, ethics and
compliance programmes, distinct anti-corruption programmes, fraud risk management,
etc.).
2. The legislation provides a clear definition of the scope of protected disclosures and of the
persons afforded protection under the law.
Examples of best practices in support of this principle could include, inter alia:
- Protected disclosures include: a violation of law, rule, or regulation; gross
mismanagement; a gross waste of funds; an abuse of authority; a substantial and specific
danger to public health or safety; or types of wrongdoing that fall under the term
“corruption”, as defined under domestic law(s);
- Individuals are not afforded whistleblower protection for disclosures that are prohibited
by domestic laws in the interest of national defense or the conduct of foreign affairs,
unless the disclosures are made in the specific manner and to the specific entity/entities
those domestic laws require;
- Public and private sector employees are afforded protection, including not only
permanent employees and public servants, but also consultants, contractors, temporary
employees, former employees, volunteers, etc.;
- Clear definition of “good faith” or “reasonable belief”; although individuals are not
afforded protection for deliberately-made false disclosures, protection is afforded to an
individual who makes a disclosure based upon the individual’s reasonable belief that the
information disclosed evidenced one of the identified conditions in the statute, even if the
individual’s belief is incorrect.
3. The legislation ensures that the protection afforded to whistleblowers is robust and
comprehensive.
Examples of best practices in support of this principle could include, inter alia:
- Due process for both parties (the whistleblower and the respondent), including, inter
alia, the need for protecting confidentiality;
- Protection from any form of discriminatory or retaliatory personnel action, including
dismissal, suspension, or demotion; other disciplinary or corrective action; detail transfer,
or reassignment; performance evaluation; decision concerning pay, benefits, awards,
education or training; order to undergo medical test or examination; or any other
significant change in duties, responsibilities, or working conditions;
- Protection from failure to take personnel actions, such as selection, reinstatement,
appointment, or promotion;
- Protection from harassment, stigmatisation, threats, and any other form of retaliatory
action;
- Protection from other forms of retaliatory conduct, including through waiver of
liability/protection from criminal and civil liability, particularly against defamation and
breach of confidentiality or official secrets laws;
- Protection of identity through availability of anonymous reporting;
- Clear indication that, upon a prima facie showing of whistleblower retaliation, the
employer has the burden of proving that measures taken to the detriment of the
whistleblower were motivated by reasons other than the disclosure;
- Protection against disclosures an individual reasonably believes reveal wrongdoing even
if the whistleblower is incorrect”;
- Protection of employees whom employers mistakenly believe to be whistleblowers.
4. The legislation clearly defines the procedures and prescribed channels for facilitating the
reporting of suspected acts of corruption, and encourages the use of protective and easily
accessible whistleblowing channels.
- Examples of best practices in support of this principle could include, inter alia:
- Provision of protection for disclosures made internally or externally;
- Establishment of internal channels for reporting within the public sector;
- Strong encouragement for companies to establish internal reporting channels;
- Protection afforded to disclosures made directly to law enforcement authorities;
- Specific channels and additional safeguards for dealing with national security or statesecrets-related disclosures;
- Allowing reporting to external channels, including to media, civil society organisations, etc.;
- Incentives for whistleblowers to come forward, including through the expediency of theprocess, follow-up mechanisms, specific protection from whistleblower retaliation, etc.;
- Positive reinforcements, including the possibility of financial rewards for whistleblowing;
- Provision of information, advice and feedback to the whistleblower on action being taken in response to disclosures.
5. The legislation ensures that effective protection mechanisms are in place, including by
entrusting a specific body that is accountable and empowered with the responsibility of
receiving and investigating complaints of retaliation and/or improper investigation, and by
providing for a full range of remedies.
Examples of best practices in support of this principle could include, inter alia:
- Appointment of an accountable whistleblower complaints body responsible for
investigating and prosecuting retaliatory, discriminatory, or disciplinary action taken
against whistleblowers who have reported in good faith and on reasonable grounds
suspected acts of corruption to competent authorities;
- Rights of whistleblowers in court proceedings as an aggrieved party with an individual
right of action, and to have their “genuine day in court”;
- Penalties for retaliation inflicted upon whistleblowers, whether this takes the form of
disciplinary or discriminatory action, of civil or criminal penalties.
6. Implementation of whistleblower protection legislation is supported by awareness-raising,
communication, training and periodic evaluation of the effectiveness of the framework of
protection.
Examples of best practices in support of this principle could include, inter alia:
- Promoting awareness of whistleblowing mechanisms, provide general advice, monitor
and periodically review the effectiveness of the whistleblowing framework, collect and
disseminate data, etc.;
- Raising awareness with a view to changing cultural perceptions and public attitude
towards whistleblowing, to be considered an act of loyalty to the organisation;
- Training within the public sector to ensure managers are adequately trained to receive
reports, and to recognise and prevent occurrences of discriminatory and disciplinary
action taken against whistleblowers;
- Requirement in the law that employers post and keep posted notices informing employees
of their rights in connection with protected disclosures
Brief overview of the benefits of public sector whistleblower protection
- Encouraging the whistleblowing on acts of suspected corruption is essential in safeguarding
public interest and promoting a culture of public accountability and integrity. Public officials have
access to up-to-date information concerning their workplaces’ practices, and are usually the first to
recognise wrongdoings. In most jurisdictions, it is an obligation for them to report corruption and other
malpractices. However, public officials who report wrongdoings may be subject to intimidation,
harassment, dismissal and violence by their fellow officials or superiors. In many countries,
whistleblowing is even associated with treachery or spying.77 This notion may be the result of the
influence of cultural connotations and, in turn, may also have an impact on individual careers and on
[/lockercat]the internal organisational culture.
- As a result, encouragement of whistleblowing must be associated with the corresponding
protection for the whistleblower. In the public sector, public servants need to know what their rights and
obligations are in terms of exposing actual or suspected wrongdoing within the public service. These
should include clear rules and procedures for officials to follow, and a formal chain of responsibility.
Public servants also need to know what protection will be available to them in cases of exposing
wrongdoing.
- Translating whistleblower protection into legislation legitimises and structures the
mechanisms under which public officials can disclose wrongdoings in the public sector,
protects public officials against reprisals, and, at the same time, encourages them to fulfil their
duties in performing efficient, transparent and high quality public service. If adequately implemented,
legislation protecting public sector whistleblowers can become one of the most effective tools to support
anti-corruption initiatives, detecting and combating corrupt acts, fraud and mismanagement in the
public sector.80 The absence of appropriate legislation impedes the fight against corruption and
exposes whistleblowers to risks of retaliation.
- Although in some countries whistleblower protection is still in its infancy, it is increasingly
recognised as an essential anti-corruption mechanism and a key factor in promoting a culture of public
accountability and integrity. For example, in OECD countries between 2000 and 2009, legal protection
for whistleblowers grew from 44% to 66%.
Private sector whistleblower protection: Legal provisions and voluntary measures
- Domestic legal provisions expressly devoted to the protection of whistleblowers in the private
sector are less common than for the public sector. However, the private sector is increasingly taking
voluntary measures to create internal channels for safely and confidentially reporting misconduct. This
could be for a number of reasons. An effective whistleblowing regime deters wrongdoing; facilitates the
reporting of misconduct without fear of retaliation; helps identify misconduct early on and thereby
prevent potentially grave disasters; and reduces the risk of potentially damaging external reports,
including to regulators or the media. Whistleblower protections are also an important element of an
internal controls, ethics and compliance programme, which—taken in the programme’s entirety—could
demonstrate to shareholders and law enforcement that a company has made efforts to prevent, detect
and address corrupt behaviour. This could be especially relevant to companies subject to the
jurisdiction of anti-bribery and anti-corruption laws that include a defence against liability for certain
offences by having “adequate procedures” in place to prevent bribery, or where sentencing guidelines
provide more lenient sentences on companies with such programmes in place.
- There is no consensus as to which approach works best for ensuring the protection of private
sector whistleblowers: enacting domestic legal provisions, promoting voluntary measures among the
private sector, or combining the two. For example, the International Chamber of Commerce (ICC) warns
against over-regulation of private sector whistleblowing regimes, emphasising that self-regulation and
voluntary integrity programmes provides for effective protection of corporate interests and adaptability
to different workplace environments.159 Others have argued that current legal provisions for private-
sector whistleblowers can be narrow, inconsistent and/or difficult to navigate160; for example when
legislation limits the scope of private sector employees afforded protection, or when multiples laws may
apply to the same persons.
Whistleblowers and protection of sources
- The Survey indicated that whistleblowers are often the first source of information for
journalists reporting on corruption stories. Whistleblowers turn to journalists for various
reasons including to protect their identity, to bring issues of concern to the attention of the
public or government, or in the absence of effective responses by law enforcement or
employers. One journalist noted that reporting to the media can be more effective for a
whistleblower than reporting to law enforcement. While criminal proceedings
can take years to reach a conclusion, a journalist can draft and publish a story
within days that can reach a global readership through social media platforms.
New technology means that journalists can communicate with their sources via
encrypted communication platforms (e.g. Signal), which can protect the
whistleblower’s identity. However, journalists acknowledged the significant
risks to sources as a result of non-existent or vastly inadequate whistleblower
protection frameworks in many countries. Even in countries with whistleblower
protection laws, protection rarely extends to whistleblowers who report directly to the
media.13 54% of respondents considered protection of sources a concern when interacting
with law enforcement authorities in corruption cases. One journalist referred to an
ongoing administrative case between the media outlet and tax authorities, where the tax
authorities were compelling production of Panama Papers documents and editorial
material which, if disclosed, would reveal sources. For this journalist, the case
highlighted the lack of seriousness with which the authorities treated the protection of
sources. Some journalists were concerned about government surveillance or other
attempts to seek the identity of their sources; others approached law enforcement for
assistance with source protection, presumably in criminal cases where sources were
receiving physical threats from other perpetrators.
- Whistleblower protection was considered the second most valuable support for journalists
investigating corruption (63%), behind strong editorial board backing (77%). Journalists also
noted that their sources can also work for law enforcement agencies, and considered that these
sources should be protected as any other whistleblower. The media plays a potentially vital
role in de-stigmatising whistleblower reporting. For example, referring to a “leak” when
breaking a story based on information provided by a whistleblower (particularly an insider),
can serve to reinforce perceptions that the whistleblower was acting unethically or illegally in
providing such information. The role of whistleblowers and whistleblower protection in
detecting foreig
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