This article is written by Jannat from Chandigarh University, Mohali. The article examines the whistleblower laws throughout the world.

Introduction

A whistleblower is a person who acts as an informant and exposes illegal activities of an organization. This person could either be an employee or a volunteer at the organization. In case they choose to report misconduct or wrongdoing they can avail themselves of protections. Whistleblowers are one of the best methods for exposing corruption or financial crime or drug trafficking or any other serious crime, for which they are often subjected to vengeance. That’s why whistleblower protections are so significant. In 2003, the United Nations (UN) recognized the importance of whistleblower protection legislation in its Convention against corruption.

The case law Aghimien v. Fox (2016) will help to better understand the concept of whistleblowing. 

The plaintiff whistleblower alleged two university professors are culpable for academic plagiarism. One of them was found guilty, while the other was not. Cleared of plagiarism charges, the co-author brought a defamation suit against the whistleblower. The Court gave a non-guilty judgment as there was no malice present.

Fear of these adverse repercussions will lead to disincentive from the whistleblowers and will hurt individuals wanting to provide evidence of wrongdoing.

General protection provided to a whistleblower

• Sanctions against perpetrators of retaliation, 
• The right to refuse to participate in wrongdoing, 
• In some cases, physical protection for whistleblowers and affected family members.
• Protection of identity by reporting confidentially or anonymously
• Reward laws are a very powerful and effective motivation for incentivizing whistleblowers to report.

Additional dispute resolution

Third-party conflict settlement will provide whistleblowers with a more expedited and less expensive platform. Labour management arbitrations, for example, have proven to be highly successful where the parties exchange costs and choose the decision-maker by mutual consent via a “hit” mechanism. It has the potential to have an impartial and equitable settlement of whistleblower conflicts. In the case of multinational organizations, such a paradigm will avoid the difficult question as to whether the organization has waived its exemption from national legal structures. In the United States Whistleblower Protection Act (US WPA), alternative conflict resolution is regarded as a standard option for resolving revenge situations. This option, which is still used to settle foreign trade disputes, may be useful in areas where judicial institutions are fragile or lack authority.

Legislative framework

India 

In India, the Whistleblower’s Protection Act, 2014 provides safeguard to the whistleblowers. The Act has its jurisdiction only in the public sector; it does not protect the private sector. The Act does not apply to the armed forces of the Union, and the Special Protection Group constituted under the Special Protection Group Act, 1988. This Act comprises 31 sections. Part V of the Act contains protection to the persons making the disclosure and Part VI contains offences and penalties. Anonymous complaints are not permitted. In 2015 an amendment was made to the act outlining 10 categories of disclosures that will not be protected, which includes trade secrets and information received from a foreign government.

According to the Companies Act of 2013 large private companies must establish a “vigil mechanism”. The vigil mechanism consists of receiving reports about unethical behaviour, offence, fraud, or other violations of policy in the company. The Act also protects whistleblowers against victimization.

In Manoj H.Mishra v. Union Of India & Ors (2013), the Supreme Court of India held that “One of the basic requirements of a person being accepted as a “whistleblower” is that his primary motive for the activity should be in furtherance of the public good. In other words, the activity has to be undertaken in the public interest, exposing illegal activities of a public organization or authority. 

A “whistleblower” would be a person who possesses the qualities of a crusader. His honesty, integrity, and motivation should leave little or no room for doubt. It is not enough that such a person is from the same organization and privy to some information, not available to the general public. The primary motivation for the action of a person to be called a “whistleblower” should be to cleanse an organization. It should not be incidental or byproduct of an action taken for some ulterior or selfish motive.”

As addressed in Common Cause and Others v. Union of India and Others (2015), The Supreme Court has stated that a whistleblower who discloses classified information in the public interest cannot be punished. Currently, any disclosure is a public interest disclosure under the act; however, our laws do not have a clear meaning for the term “public interest.” As a result, there has been a lot of confusion about whether or not the information is of public interest.

A long way to go- Vyapam Scam

The scam unearthed how undeserving candidates bribed politicians and MPPEB officials, through middlemen, to get high ranks in these entrance tests.

More than 40 ‘unnatural’ deaths of whistleblowers linked to the scam have been reported. The whistleblowers have to go through police harassment and live in fear for their lives. Like various other laws in India, the whistleblower laws have just been on paper. In reality the execution of this legislation is very poor. India surely has a long way to go before whistle-blowing becomes safe for its citizens.

Australia

Before 2019 Australia had no single piece of legislation protecting the whistleblowers. Different states and territories had different laws governing whistleblower protection. Australia now has more than 20 legislations regulating whistleblower protection. Eligibility for protection depends on the requirements of the applicable law and the subject matter of the disclosure. Not all disclosures are protected by law in Australia. At the federal level, whistleblowers face potential imprisonment for making disclosures about certain subjects, including national security and immigration matters. The first whistleblower law was established after the Fitzgerald Inquiry.

In the public sector, the Public Interest Disclosure Act, (PIDA) 2013 offers whistleblower protections to federal employees. In the private sector, the Corporations Act, 2001 protects current employers, officers, contractors, and suppliers of private companies who disclose relevant information (in good faith) to the Australian Securities and Investments Commission (ASIC). Other laws with provisions protecting whistleblowers include the Occupational Health and Safety Acts, the Fair Work Act, 2009, the Banking Act, 1959, the Life Insurance Act, 1995, and the Insurance Act, 1973.

The Australian Federal Government passed new whistleblower legislation, the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act, 2019 to ensure that people can anonymously report unethical or illegal behaviour occurring in Australian businesses in 2019. Companies who will fail to follow the new federal whistleblower laws will face penalties of up to $10.5 million. The changes in the law will apply retrospectively from July 1, 2018.

Canada

According to Section 425(1) of the Criminal Code of Canada, it is an offence for employers to threaten to or to take disciplinary action, demote, terminate or otherwise adversely affect employment with the intent to force the employee to refrain from providing information to law enforcement about an offence or to retaliate against an employee who has already provided such information. It applies to employees who report to law enforcement officials only, and not to employees who report wrongdoing to other parties such as media sources or outside agencies or advocacy groups.

According to the Public Servants Disclosure Protection Act, 2007, an employer cannot take vengeance against a public servant who has made a protected disclosure or has, in good faith, cooperated in an investigation into a disclosure or an investigation commenced. The Act provides a process for the disclosure of unethical acts in the federal government. There are many objections raised against the act, for example, it puts the burden of proof on whistleblowers to prove that the actions of the employer were out of revenge.

For private-sector organizations, the federal Personal Information Protection and Electronic Documents Act (PIPEDA), 2000, allows some protection for whistleblowers who wish to remain anonymous. The Canadian government has also started rewarding incentives for whistleblowers.

Neil Fraser v. Public Service Staff Relations Board (1985)

Facts

Neil Fraser, a Revenue Canada employee, publicly criticized the federal government’s policies on the mandatory rollout of the metric system. Mr. Fraser linked it to the Canadian Charter of Rights and Freedoms, decrying “Your freedom to measure is a measure of your freedom.” He was warned by his employer to stop, but he did not bother, it led to two suspensions. Eventually, he got fired. Mr. Fraser appealed these actions.

Held

It was held that the first suspension was unjustified. The judge said that public servants have the right, like other private citizens, to criticize government policies unrelated to their work but they should exercise restraint when making public statements related to their direct duties. The suspension would have a chilling effect on whistleblowers and would hinder their attempt to inform the public about the unethical exercises in the public sector.

However, the Judge upheld the second suspension and dismissal because Mr. Fraser escalated public criticism even after his employer offered to expedite the grievance procedure.

Bank  of Nova Scotia v. Randhawa (2018)

Facts

Maninderpal Randhawa was sacked from her position at the Bank of Nova Scotia in 2014 for dishonesty. She refused to comply with bank policies, according to a risk management report that included video footage. Ms. Randhawa, on the other hand, said her dismissal was revenge. Ms. Randhawa had lodged a lawsuit against her employer via the bank’s internal informant hotline shortly before her firing. 

Held

The adjudicator ruled that the termination was “tainted” and lifted the bar on the employer’s argument. He determined that, while integrity and confidence are still valuable virtues for bank workers, Ms. Randhawa’s violations did not pose real damage to the bank. They were still not serious enough to cut to the core of the working partnership. Besides that, the bank had a slew of other tools at its disposal to punish Ms. Randhawa, such as termination, demotion, or retraining. He demanded that Ms. Randhawa be reinstated with financial compensation. At this point, three years had elapsed since her firing, and Ms. Randhawa had received a sizable monetary settlement for her grievance.

A 2017 report from Ryerson University’s Centre for Free Expression, ‘What’s Wrong with Canada’s Federal Whistleblowing System’, shows that the Public Servants Disclosure Protection Act of 2007 is dormant.

China

In China, there are many strict whistleblower protection laws. The Regulation on Labor Security Supervision 2004 grants whistleblowers the right to report any act that breaches a law, regulation, or decree. It also requires that complaints must be kept confidential so that whistleblowers do not have to face retaliation and sometimes, they are compensated for their information.

In 2014, the Supreme People’s Procuratorate (SPP) developed Rules for dealing with Whistleblowing which outlines the rights and protections of whistleblowers, including the right to follow up on the status of their report and the right to request protection orders. That same year, China amended the Rules on the People’s Procuratorate on Whistleblowing Work to provide additional rights and protections for whistleblowers.

Then, in 2016, the SPP released a new set of regulations called Several Provisions on Protecting and Rewarding Whistleblowers for Reporting Duty Crimes. These provisions redefine retaliation, offer larger incentives for reporting misconduct and provide greater levels of confidentiality and protection for whistleblowers and their families. The new regulations provide an increased protective measure to whistleblowers:

Greater secrecy 

A robust series of confidentiality security provisions that safeguard whistleblowers during the whole process of managing and awarding whistleblower reports.

Retaliation 

It has been described more generally to include not only threats to the life or property of whistleblowers and their near associates, but even other clandestine actions such as termination of jobs, demotion, or denying acceptance of applications without sufficient reason.

Increased safety and wealth security  

Whistleblowers and their immediate relatives are also better protected, including their safety and belongings, the ability to propose rectification action to officials, and the ability to coordinate with relevant authorities for assistance or subsidies.

European Union

The European Commission drafted a revised package of guidelines for whistleblower rights in the European Union (EU) in early 2018. Before the initiative, whistleblower rights in the European Union were “segmented and inconsistent,” with 10 European Union member states providing full protection and the others providing only limited protection.

The latest proposal aims to shield whistleblower leaks in public contracting, financial services, tax evasion and terrorism funding, product regulation, transportation safety, environmental security, public health, customer protection, and other areas.

The proposed legislation will:

• Create secure monitoring systems.
• Whistleblowers must be protected from revenge.
• Education and preparation were mandated.

An organization with more than 50 employees (and/or annual revenue of more than €10 million) shall have an internal mechanism for dealing with disclosures. Processes would also be available for state, federal, and local governments of more than 10,000 residents.

The resolution states that the internal procedure must contain the following steps:

• Channels of communication that are clear and confidential
• A three-tiered monitoring structure (internally, to authority, or media)
• A three-month deadline for responding
• Security from retribution

According to a 2013 survey, EU members have advanced, partial, or reduced whistleblower rights. Luxembourg, Romania, Slovenia, and the United Kingdom have advanced safeguards. Bulgaria, Finland, Lithuania, Portugal, and Spain are among the countries with few rules.

Russia

There is no clear whistleblower safety statute in Russia; however, there is a range of statutes that include similar protections, including Federal Law N. 273-FZ of 2008, Federal Law N. 119-FZ of 2004, the Constitution of 1993, the Criminal Code of 1996, and the Code of Criminal Procedure,  2001.

Federal Law NO. 273-FZ, Russia’s Anti-Corruption Law,  requires businesses working in Russia to introduce anti-corruption policies and unique anti-corruption controls. Federal Law N.199-FZ, on the other hand, centres mainly on state defence offence whistleblowers who go public with their leak and engage in court proceedings.

In 2017, the government proposed changes to Russia’s anti-corruption law, Federal Law NO. 273-FZ of 2008. Employers, according to the proposed amendment, must:

• Increase the rights afforded to whistleblowers.
• Set up an internal monitoring system.
• Take appropriate precautions to maintain secrecy.

Whistleblowers may now be shielded from employer harassment under this provision, and they will be eligible for legal protection.

United Kingdom

Financial institutions, in particular, are governed by the United Kingdom’s Accountability and Whistleblowing Instrument of 2015 (and the amendment from 2017). This strong whistleblower safety legislation outlines a variety of obligations, including:

• Implement internal protocols that provide for secrecy.
• Provide safeguards to shield whistleblowers against retaliation.
• Appoint a champion for whistleblowers to monitor program efficiency.

Whistleblowers are covered outside of the finance industry under the Public Interest Disclosure Act of 1998 (PIDA). Employees who make covered declarations are protected from retribution under the PIDA. Disclosures are only covered under PIDA where they expose a criminal offence, a violation of contract or civil responsibility, a travesty of justice, a threat to public health or welfare, environmental harm, or the intentional concealment of facts related to any of the above.

Disclosures must be made in good faith to the supervisor or another liable entity by a “safe worker,” such as an agency worker, a freelance worker, a current or retired employee, a homeworker, a consultant, or a trainee, to be protected.

Over a one-year cycle in the United Kingdom, whistleblowers secured just 13.8% of proceedings in England, Scotland, and Wales (31 out of 224)

United States

The United States was the first nation to pass a whistleblower rights statute. Through informant rights in the Occupational Safety and Health Act, President Richard Nixon signed the first whistleblower act into law in 1970. The Civil Service Reform Act, passed by Congress in 1978, protects whistleblowing in federal departments. Since then, the federal government has passed about 60 whistleblower regulations, each of differing requirements and efficacy.

Whistleblowers in the United States are guarded by several federal and state laws. The said whistleblower laws are focused on a single subject, market, or field. Here are a few examples:

The Whistleblower Protection Act of 1989 prohibits government workers in the United States from prosecution for sharing knowledge regarding a breach of the law, misuse of power, the risk to public health, or any illegal activity.

The Whistleblower Protection Enhancement Act of 2012 expanded the scope of covered disclosures by strengthening the original protections from 1989.

The False Claims Act, 1863 protects whistleblowers who provide proof of wrongdoing involving government contracts or services. As compensation, these whistleblowers can be given a part of the recovered funds.

The Sarbanes-Oxley Act of 2002, also known as SOX, covers employees of publicly traded firms who have faced retribution for making covered disclosures. SOX protects consultants and subcontractors as well as the direct staff of these firms.

The Wall Street Reform and Consumer Protection Act, also known as Dodd-Frank, was passed in response to the financial crisis in 2010. This Act allows the Securities and Exchange Commission to compensate whistleblowers who have information on corporate theft.

The Defend Trade Secrets Act of 2016 also has some limited whistleblower provisions for trade secret theft.

The Occupational Safety and Health Act of 1970 is one of several laws enacted by the Occupational Health and Safety Administration that covers whistleblowers who lodge investigations or complaints about worker safety problems.

During a one-year cycle in the United States, fewer than 10% of employees in the public and private sectors succeeded as they threatened to protect their interests by whistleblowing prosecutions. In the federal government itself, only seven out of 65 whistleblowers, or 10.8 percent, were successful on the merits, with decisions on whether agencies violated their WPA privileges. With procedural defeats (35 procedural losses out of 100 WPA cases), just 7% of WPA complainants received favourable favour decisions (seven out of 100). In the smaller subset of lawsuits involving the private sector, 31.2 percent of those who submitted due process allegations were successful on the merits (five out of 16). Corporate workers prevailed in 17.2% of lawsuits submitted (five out of 29).

Assessment of the whistleblower protection statutes

Although whistleblower protection laws are becoming more common, the protections they have in many cases are mainly symbolic. This has proved to be ineffective. Employees have risked retribution, believing they were protected when, in fact, they have no chance of advancing in their careers. With legal platforms officially encouraging revenge, victims of retribution have been far more judgemental than if no whistleblower privacy statute existed at all. In certain ways, this was due to honest-to-goodness trial-and-error mistakes or omissions when establishing new rights. Many lessons have been drawn from the evolution of whistleblower protections over the past three decades. Legislative flaws in some states have been slowly addressed by reforms to correct errors and close gaps.

None of the retaliation cases that are filed is heard. This is not conclusive evidence that the rules are failing. Settlements are frequently indicative of a stable system. Conciliation and private settlements in whistleblowing law skew the estimates regarding the amount of restitution awarded; if they should have been included in this report, the results would have most likely been much larger. Out-of-court settlements favour both claimants and respondents because they enable both parties to voluntarily cooperate in reaching an agreement under the burden of media attention.

A total of 487 cases were discovered in a study, with male whistleblowers accounting for the majority (316, 67%), while females accounted for 160 cases (31 percent). The remaining 2% consists of unidentified whistleblowers (whose identities were kept safe) and cases involving multiple whistleblowers. Nonetheless, these figures show a surprising gender gap, posing concerns regarding both the motives of male and female whistleblowers and the cultures under which they work.

Effectiveness of the statutes

Whistleblower policies vary from one another. Any whistleblower legislation should shield, motivate, and offer appropriate redress for anyone who discloses information. Laws, on the other hand, laws On Embody prevalent cultural values and promote access to justice; they do not, however, guarantee a favourable result. Thus, rather than the outcome of decided cases, the success of a statute may be best calculated by the number of cases brought under it. On the other side, the efficacy of whistleblower confidentiality legislation would be jeopardized if they were expansive enough to include other work complaints. This is a difficult balance to achieve. This is not due to a lack of good drafting, but because the people for whom such laws intend to act as shields do not use them.

Role of technology in whistleblowing

Whistleblowing is being transformed by technology, which is encouraging individual whistleblowers and evolving the essence of whistleblowing itself. Whistleblowing rules would eventually have to cater to technical advancements. 

• Web platforms, for example, are replacing conventional hotline systems, including the added advantage of anonymity whilst enabling the availability of supportive documents and contact with an investigating authority. Web portals may be used internally within a company or outsourced to a third party.
• Many websites, such as WikiLeaks, provide a sophisticated forum for whistleblowers to provide information without disclosing any personal information. They say that they don’t even keep track of where you put that stuff, your time zone, or your browser. Because of all of these advantages, citizens are more likely to use these channels than the government-mandated processes, which require us to reveal our identities.
• Web applications that expose wrongdoing blend the benefits of online sites with the portability of mobile phones. They are particularly valuable in countries with underdeveloped technical infrastructure. For example, The Independent Corrupt Practices and Other Related Offences Commission of Nigeria released the whistleblowing app Wahala Day in 2017.

Restrictions on Whistleblower rights protections

1. There is indeed a lack of reference to court rulings and statistics on whistleblower leaks, which makes assessing their efficacy difficult.
2. Whistleblower protection policies are largely undervalued. The explanations for this continued underuse vary by jurisdiction, but they both point to the fact that whistleblower protections do not exist in a vacuum. Laws must be used in conjunction with public information campaigns that stress the public interest in the prevention of illegal activities by transparency. 
3. Overall, the majority of whistleblowers do not need to officially prevail in retribution claims. In countries where the cases occur regularly (30 or more cases), significantly fewer than 13% of whistleblowers received official, definitive judgments. Whistleblowers have won at least 16% of lawsuits in large and medium-use countries where procedural dismissals were excluded and only rulings on the merits were included. The average performance rate was 21% when all 37 countries were considered (80 merits wins out of 379 merits decisions).
4. When the whistleblowers win officially, they always ‘lose by winning’ due to limited monetary bonuses, high expenses, and long processes for settling revenge lawsuits.
5. More encouragingly, the win-loss data underestimates the impact of whistleblower legislation when a large number of lawsuits are resolved by agreements that may not have occurred in the absence of procedural safeguards.
6. When negotiation occurs or yields an unsatisfactory outcome for the claimant, the whistleblower must assume the responsibility of upholding the rule against retribution and face incurring significant litigation expenses. Legal bills mean that even if a whistleblower is successful, he or she will not emerge in a favourable, or even neutral, financial situation if those expenses are not compensated or the penalties awarded are insufficient.

Conclusion

Although employee vigilance is on the increase, and whistleblower complaints are on the rise, the law governing how to handle such complaints and protect whistleblowers is ambiguous and still evolving. To that end, it’s important to have a strong whistleblower policy in place. Many of the strongest statutes in the world are dormant or used only infrequently because those who use them are either ignorant of their presence or are unable to use them due to cultural prejudice. The state of whistleblower protection in our country is not encouraging; even after enacting several laws and making changes, the mechanism is in poor shape. Protecting whistleblowers necessitates a rapid shift in perceptions among governmental and corporate agencies, lawyers and judges, and workers and employers – stronger security can not be achieved solely by legislative adjustments. Public education must therefore persuade communities that these laws aim to challenge rather than allow government violations of power.

Deeply rooted social expectations perpetuate bias and, as a result, inequality at the workplace. This negative psychological reaction is ineffective, but it persists with no repercussions. It is critical to target harmful stereotypes that malign whistleblowers through public outreach programs and training for different audiences such as law enforcement, employers, lawyers, and non-governmental organizations (NGOs). Whistleblowers are as important to the public as they are to businesses and governments. A great deal of courage is needed to be a whistleblower; no one can withstand the strain that a whistleblower faces in our country.

References

• Whistleblower Laws Around the World – National Whistleblower Center (whistleblowers.org)

• Whistleblower Protection Laws In Canada | Lecker & Associates (leckerslaw.com)
• Are-Whistleblowing-laws-working-REPORT.pdf (whistleblower.org)

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