Decalogue for the Protection of Whistleblowers
28 October, 2015

Decalogue for the Protection of Whistleblowers

Decalogue for the Protection of Whistleblowers

 
The need to protect whistleblowers is increasingly recognised at international, national and local level, and in many sectors, ranging from health care, to public spending, to banking or the environment

Protecting Whistleblowers is a necessity to ensure transparency, openness and accountability of government agencies, timely detection and prevention of any action or omission that represents harm or threat to the public interest, including corruption and other wrongdoings, effective enforcement of whistleblower rights and effective whistleblower protection, affirmation of freedom of media and the protection of freedom of speech.

At this moment, those who sincerely make the decision to bring themselves to denounce cases of corruption or wrongdoings that harm or threat the public interest find themselves in an unacceptable atmosphere of isolation and intimidation.

Relevant legislation exists in other countries, and drawing on this we will outline our proposal.

1. What is a Whistleblower?

A whistleblower is an individual who has disclosed or reported a wrongdoing that harms or threatens the public interest. Such information may have become known to him/her in connection with his/her employment, professional, economic, social, voluntary or scientific activity; as a consumer, user or contractor of goods or services; or while doing military service or professional training.

Whistleblowing is the disclosure or reporting of wrongdoing that harms or threatens to the public interest, that have occurred, are occurring, or are likely to occur, including but not limited to corruption; criminal offences; breaches of legal obligation; miscarriages of justice; specific dangers to public health, safety or the environment; abuse of authority; unauthorised use of public funds or property; gross waste or mismanagement; conflict of interest; and acts to cover up of any of these.

Whistleblowers must be protected both in public and private sectors and all fields.

2. Protection of the Privacy and Anonymity of the Whistleblower

Effectively protect the anonymity and privacy of whistleblowers as well as, where applicable, that of their family or people close to them, as the case may be, including:

– Allowing and facilitating anonymous reports from within institutions and businesses, as well as, in exceptional cases, such as large corruption schemes, taking statements of whistleblowers via systems that hide their identities and accepting testimony through technologies that allow for this.

– Guaranteeing the right to private personal communications, investigating ex officio any interference.

– If requested, including the whistleblower and witnesses in the witness protection program and, insofar as is necessary and possible, relocation.

– Completely or partially prohibit, as appropriate, revealing information about their identities and whereabouts.

3. Secure Channels for Accusations

Whistleblowers should be free to report both internally and externally. The existence of trustworthy channels for denouncing corruption or wrongdoings that harm or threat the public interest should be assured.

Channels for bringing forward allegations that operate independently of the hierarchy and guarantee safety and anonymity should be established by all government agencies and private institutions with a certain number of employees.

Whistleblowers protection must extend to disclosures made publicly or to third parties (external disclosures) including but not limited to disclosures to the media, NGOs, labour unions and members of parliament.

Training and assistance will be offered to workers and civil servants who will give information and protection to whistleblowers, and guarantee that the rights of citizens who report irregularities will be respected.

In particular, enforced methods of protection for civil servants whose work consists of reporting on the legality of public decisions which is in the public interest to protect.

4. Protection of the Physical Integrity of the Whistleblower

– Incorporate in the legal framework appropriate measures to provide protection, when necessary, against unjust treatment, physical retaliation, or intimidation of whistleblowers, witnesses, or expert witnesses who present testimony.

5. Labour Rights and remedies for retaliation

– Protect the right to not be fired during the legal process resulting from accusations, declaring the firing invalid in such cases. In the case of retaliation, stability of work should be facilitated and looked out for.

– Comprehensive and accessible civil and/or employment remedies for a whistleblower who suffers detrimental action as well as sanctions against those
responsible for retaliation.

– Burden of proof on the employer – in order to avoid sanctions or penalties, an employer must clearly and convincingly demonstrate that any measures taken against an employee were in no sense connected with, or motivated by, a whistleblower’s disclosure.

6. Waiver of liability

– Any disclosure made within the scope of whistleblower legislation shall be immune from disciplinary proceedings and liability under criminal, civil and administrative laws, including those related to libel, slander, copyright and data protection. The burden shall fall on the subject of the disclosure to prove any intent on the part of the whistleblower to violate the law.

– Whistleblowers who disclosure inaccurate information in honest error should still be protected, and they should not have to prove that they acted in good faith.

7. Legal Defence

– Guarantee whistleblowers the right to free legal assistance in legal processes that are a result of their condition as whistleblowers: allegations of intimidation, threats, injury, slander…

– Investigations into the issues raised by whistleblowers should be conducted independently and within the shortest time frame possible. Specific measures should be put in place to guard against bad legal practice used to slow down the process or increase expenses as a method to wear down the whistleblower psychologically and economically and to punish the whistleblower for their allegations.

8. Psychological and Medical Attention

– Given the data that attest to the prevalence of stress-related health problems in whistleblowers, guarantee access to psychological and medical attention if the whistleblower considers it necessary.

9. Institutional Communication

– Use government institutions to push a campaign to normalise alerts from citizens, not penalize them. As explained in point 0, this does not lead to accusations among equals (which are already addressed in other parts of our legal code). There are already enough systems to control average citizens, what is needed is a solution to the deficiencies and inequality in the administration of justice between citizens and corporations or public offices.

10. Codes of Good Business Practice

– Issue contractually binding codes of good business practice from city councils, regional governments, and the central government. The codes would guide companies, both public and private (above a certain size) and the administration of the State, regional institutions, and municipal councils, including protection for those who make allegations of irregular conduct.

– Businesses with over a certain number of employees will be required to have an anonymous mailbox to receive allegations of abuses and misconduct, and government institutions will need to ensure their use.

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