HSE University Anti-Corruption Portal
A Study on Effectiveness of Whistleblowing Laws Released

The Government Accountability Project (GAP) and the International Bar Association (IBA) have released a study based on two-year analysis of whistleblowing laws.

The research project included analysis of existing laws on whistleblower protection and their enforcement in 37 countries. 

The authors of the study highlight that the development of the legal framework regulating whistleblowing and whistleblower protection does not guarantee that their rights and interests will indeed be protected: duly functioning judicial and enforcement “ecosystem” integrating relevant legal provisions is equally important. However, in spite of the fact that at present 48 countries have national whistleblowing laws and their number will further increase to 62 by the end of 2021 with the adoption of the EU Whistleblower Directive, they remain widely unenforced.  

The experts believe that the lack of efficiency of the whistleblowing laws and a low volume of reported cases are mostly due to some major reasons:

  • A lack of access to case decisions on whistleblower disclosures (89% of countries had fewer than 15 publicly reported whistleblower retaliation cases) as well as statistics on whistleblower disclosures (59% had no reported whistleblower decisions at all), which results in misunderstanding of current situation, rights and possibilities by potential whistleblowers, “fear of the unknown” in the event of retaliation;
  • A very low rate of successful defence against retaliation through whistleblowing proceedings (with all reviewed countries combined, the overall success rate was 21%);
  • Lengthy procedures and, as a result, high costs and small financial awards and compensation payments for whistleblowers;
  • Underutilization of whistleblowing laws: despite the growing number of countries that have adopted relevant legislation, it remains prevalently symbolic, its provisions cover too limited a number of people and/or situations, and there is no real protection against retaliation. 

Based on their multi-annual research of persisting gaps in whistleblowing legislation and analysis of best practices regarding protection of whistleblowers, the GAP and the IBA point out several aspects which are crucial for developing efficient system of whistleblower protection:

  1. Protected whistleblowing should cover any lawful disclosure that would be accepted as evidence of significant misconduct;
  2. Whistleblower rights should cover disclosures of any illegality, gross waste, mismanagement, abuse of authority, substantial and specific danger to public health or safety and any other activity that undermines the public welfare or public interest;
  3. The law should provide for the right to refuse to proceed with the action if individuals reasonably believe that they are being asked to violate the law while having a possibility to be protected from retaliation;
  4. Protection should be extended not only to those who report violations, but also to other associated persons: those who work for the organisation with respect to which (whose specific employees) information is disclosed (individuals who are perceived as whistleblowers (even if mistaken), or as “assisting whistleblowers”, and individuals who are “about to” make a disclosure (to preclude pre-emptive strikes to circumvent statutory protection)), as well as those beyond the workplace (family members of whistleblowers, those who carry out activities relevant to the organisation’s mission such as contractors).
  5. Reliable protected channels must be available for those who choose to make a confidential communication or an anonymous disclosure: confidentiality should also extend to restrictions on disclosure of “identifying information”, and in the event of lawfully required exposure of whistleblowers’ identity (for instance, for civil or criminal proceedings), they should be given timely advance notice;
  6. Whistleblowers should be protected against full scope of harassment, including termination or other reprisals in the workplace, threats and violence, civil liability or criminal prosecution; 
  7. Whistleblowers’ rights should be shielded from “gag orders” meaning retaliation against whistleblowers in the event that they violate nondisclosure agreements;
  8. Institutional environment promoting awareness and support to whistleblowers should be created: remedial agencies that provide free guidance to whistleblowers on their rights and protection measures or no-cost informal remedies through investigations should be in place, training for employees on their rights as potential whistleblowers, employers on their responsibilities to protect whistleblowers and judges or other decision-makers who consider whistleblowing cases should be organised;
  9. Normal judicial due process rights should be protected: timely decisions, the right to confront accusers, objective and balanced rules of procedure, and reasonable deadlines, freedom from institutional conflicts of interest, as the organisation with respect to which (whose employees) information is disclosed will be the defendant in any subsequent court proceeding;
  10. There should be an option for alternative dispute resolution with an independent party of mutual consent;
  11. There should be realistic standards to prove the violation of rights of whistleblowers to be protected against retaliation;
  12. There should be realistic time frame to disclose information and have protection as a whistleblower under relevant legislation;
  13. There should be full compensation of consequences of reprisals, including the payment of damages for medical bills, emotional distress or loss of reputation, relocation, identity protection etc.;
  14. Interim relief for the time of court proceedings should be provided to whistleblowers: in this case the employer in relation to whose violations information was disclosed cannot pressurise the whistleblower by deliberately dragging out lawsuits thereby augmenting costs for him/her while also dismissing and depriving him/her of income; statutory protection that prevents whistleblowers from being subject to adverse costs orders when their claims are unsuccessful may be an option;
  15. Whistleblowers should have the possibility to be transferred internally to prevent repetitive reprisals of the same superiors;
  16. Those responsible for whistleblower reprisals should be held accountable;
  17. There should be internal corrective action process in response to the violations disclosed by whistleblowers. It is necessary to ensure that the whistleblower who raised the issues is enfranchised in the process and/or receives progress reports with relevant information being posted on the organisation’s website;
  18. Information about tips should be collected and disclosed along with the requests for protection; monitoring of effectiveness of practical enforcement of relevant legislation should be carried out and amendments, if necessary, should be made. 

Development and introduction of whistleblower protection systems is a complex and difficult process. Even the countries that have an outstanding record of legal regulation of these issues may face a number of difficulties. Major aspects that lawmakers should take into account in developing relevant legal and institutional framework are examined in the analytical report “Whistleblowing and Protection of Whistleblowers: US, UK and Canadian National Practices” by experts of the Anti-Corruption Centre of the National Research University “Higher School of Economics”.

Corruption whistleblowers

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