Tag Archives: Whistleblowing

Gregor Thüsing & Gerrit Forst (eds.), Whistleblowing: A comparative study (Dordrecht: Springer, 2016)

Book review, , ,

Whistleblowing is a hot topic in contemporary society. We can just mention Wiki-leaks, undertaken by Julien Assange and his team. Or the infamous scandal of Edward Snowden, who made classified information about the US government surveillance of private citizens public and, as a consequence, had to flee his country and go to Russia. Or we can mention Bradley (Now Chelsea) Manning, who also made public classified government information and was put into prison in the US with a severe sentence by the courts. Nevertheless, even before these whistleblowing cases of making public classified information about governments, the topic of whistleblowing created much controversy and fascination. We can mention here the many cases of whistleblowing in relation to business firms and private organizations. Often such cases refer to situations where individuals feel moral responsibility to “blow the whistle” in the public about wrongdoing and fraud in their organizations. Indeed, from this perspective, whistleblowing emerges “as a potential weapon against corruption, mismanagement and general non-compliance with legal obligations by a broader public” (v). In the US, famous cases where whistleblowing was important include the Enron and World Com Scandals, with the ensuing breakdown of Arthur Andersen Accounting firm, which lead to the Sarbanes-Oxley legislation.

Starting from this definition, the book edited by Gregor Thüsing and Gerrit Forst with the title Whistleblowing: A comparative study, offers a compilation of articles about the law, legislation and legal dimensions of whistleblowing in different countries around the world. The book begins by a general presentation of its topic by the editors, who co-authored “Whistle-blowing around the world. A Comparative Analysis of Whistle-blowing in 23 Countries”. In their essay and in the anthology at large, legislations and legal practices of whistleblowing in different countries are compared, and it is shown how whistleblowing is not always seen as something positive and therefore constitutes a problem for the law. In European history, especially in the totalitarian regimes of the 20th century, whistleblowing was not accepted, but rather considered as problematic for the regimes. As a result, possibly because of inertia or inherent self-interest, there has been often little protection of whistleblowers even in the following European legislations. The book is based upon a symposium held in Vienna by the International Academy of Comparative Law at the XIX International congress of Comparative Law. The aim of the book is to give researchers, judges and legislators an overview of the different approaches to legislation on whistleblowing around the world. The contributions are by leading national experts from the countries that are investigated in the book. Overall, the book shows that there is no common basis for legislation on whistleblowing in the countries that have been investigated. Even though there exist some general laws protecting whistleblowers, the countries investigated have very different approaches to whistleblowing due to historical and cultural reasons. Based on overviews of the differences in the legislations about whistleblowing, the anthology emphasizes some issues, which are important in legislation and legal practice concerning whistleblowing.

Of primary importance is of course the need to define who should be protected by legislation on whistleblowing. Is it only one definite whistleblower or should it also be supporters of whistleblowers who should be protected too? Here, whistleblower legislation needs to define the content and scope of protection of whistleblowers in law and legislation. Again, we see huge differences in legislations about who qualifies as whistleblowers and how they are protected and what kind of rights they have. Indeed, there is a potential conflict between freedom of expression and whistleblowing and many whistleblowers are taking a lot of risks if they decide to reveal classified or secret information from their organizations to the public. In this context, it is also a problem how supporters of whistleblowers and witnesses of whistleblowing should be protected by the law and how the law can ensure just and fair treatment of whistleblowers, supporters and witnesses. Important issues to be addressed in this context are issues relating to internal and external reporting of whistleblowing; what happens if the whistleblower allegations are untrue? Is the motivation of the whistleblower relevant? What if this motivation is based on personal interest? What kind of information may the whistleblower report? Is there an ethical or legal obligation to blow the whistle and inform about injustice, corruption or fraud in the organization?  What kind of protection should be offered to the whistleblowers? What kind of reprisal should whistleblowers be protected against? Who has the burden of proof in dismissal cases? What is the function of whistleblowing in society and how could we support whistleblowers in society as a contribution to collective action? In addition, a further issue is whether there should be financial support and incentives for whistleblowers.

Although the comparison of legal practices, laws and legislations relating to all these issues may be difficult, it is the aim of the anthology to identify some general patterns in the different jurisdictions that have been surveyed. The report shows that countries like the UK, Japan and South Korea are leading in advanced legislation in the field. In the US, there has also been legislation actively encouraging whistleblowers since 1863. The anthology shows that there is a growing awareness of the problem of whistleblowing and the need to have whistleblower protection in Europe too, although many countries are not very far yet in establishing general rules and legislations about whistleblowing. Countries like Italy, Malta and Romania are on their way to legislation, but even countries that already have legislation on this matter, like Germany and other EU-member states, could do a lot to improve their legislation. The anthology is based on the view that there is both need and room for improvement of even the most advanced legislations on whistleblowing in the world. We need improvements in the legislations concerning protection of witnesses and supporters of whistleblowers, since this is a topic that has been neglected. A further topic for improvement is the possible support of whistleblowing by giving whistleblowers better financial incentives. This is something where the US, after many business scandals, are a leading country.

The different national reports in the anthology vary according to the cultural particularity of the legislation in each country. In Canada, the legislation on whistleblowing has been based on the “up the ladder” principle, meaning that the whistleblower is supposed to first disclosure information about wrongdoing by internal mechanisms and then later by public disclosure of wrongdoing. The presentation of whistleblower legislation in Croatia focusses on the legal framework and the specific issues concerning whistleblowers in the public sector. Cyprus is characterized by a dichotomy between public- and private-sector whistleblower protection and the legal framework lacks independent whistleblower protection. The Czech republic has no comprehensive special whistleblowing protection legislation, but laws concerning personal data and employee loyalty may apply. In France, whistleblower legislation has been inspired by the American model in Sarbanes-Oxley, which was introduced in 2002. Freedom of expression and good faith are important principles for protecting whistleblowers. There is some mistrust against whistleblowing, but there is also a growing understanding of the need to protect the rights of persons who become whistleblowers. The German regulation of whistleblowing is characterized by a lack of general regulation. Traditionally there was a lack of protection of whistleblowers because the labor courts saw it as a breach of the loyalty of the employees. Nevertheless, by shifting the focus onto human rights, the attitude is now more open. In Ireland there has been established a new legislation that provides comprehensive protection of whistleblowers. In Malta, for many years there has not been any law at all, but some protection has recently emerged. However, whistleblowing remains very risky for the individual in many other countries. In the Netherlands, there is in contrast much civil and cultural focus on whistleblowers and there is indeed support for whistleblowing by the institutionalization of a center for advice on whistleblowing. In Poland, there has been increased focus in case law on better support for whistleblowers, although the general legal framework is not very developed. Also in Portugal there is no specific legislation and there is very little regulation for the protection of whistleblowers. In Romania, we see a first step to whistleblower protection in new labor legislation that tends to regulate the status of whistleblowers. In Slovenia the protection of persons reporting corruption and other whistleblowers is sanctioned by a specific law on integrity and corruption, which includes rules of protection of the person of the whistleblower. The US is probably the country with the most conflicted history of the legislation and legal regulation of whistleblowers. On the one hand, the government needs whistleblowers to detect wrongdoing and fraud. On the other hand, when the government itself is subject to whistleblowing, e.g. famous cases such as Watergate and Snowden, whistleblowers face reprisal from political power, even though there is an increased understanding of the need to motivate whistleblowers at large, for example with financial incentives for truth-telling in fraud cases. In addition to these discussions of different countries, the book also gives a useful synopsis of whistleblowing material from 23 different jurisdictions.

This anthology is indeed a very interesting book about a hot topic today. The book is mostly a presentation of the legal situation in a comparative perspective. More material on the ethics and legal philosophy of whistleblowing could have improved the book. Nevertheless, the book is an important compilation of material about legislations on whistleblowing. After reading the book, the reader gets a good understanding of the complexity and differences of whistleblowing legislations. In fact, the protection of the whistleblower is not very great in many countries. We see how state interests and corporate protection of their internal information often prevail over the protection of the human rights and the freedom of expression of individuals. With such legislations, it can be argued that it is very dangerous to become a whistleblower and that the legal protection of whistleblowers needs to be improved. Without it, state and corporate power over citizens and employees becomes absolute. The book is a very strong contribution to the clarification of the importance of whistleblowing and it can spur more legal debate, better legislation and deeper jurisprudence and scholarship in the field.

Whistleblowing as Employee’s Freedom of Speech. Günther Wallraff’s authorship as an illustrative case

Conference proceedings (triple non-blind peer review), ,

Thematic scope

We base our understanding of whistleblowing understood as employees’ freedom of speech on the corresponding definition of freedom of speech given by the Norwegian Commission on freedom of Speech (1999). We use the definition partly in order to articulate the transition in Scandinavia in the use of words to designate what whistleblowing is. The transition the two last decades goes from negative words as “leaking” and “..” to positive words; employee’s freedom of speech.

This chronology of words tries apparently to capture that whistleblowing belongs to the core values of democracy. a. The search for truth as a process between fallible rational agents trying to support each other in the search for a “cleaner” truth, b. the construction of independent assumptions based on the civilizing process of higher education, and c. the open debate, often formed as a “pillory”, based on free access to relevant information (Alm, Brown & Røyseng 2016)

Günther Wallraff’s authorship is specifically useful as vehicle in such a discussion and interpretation of whistleblowing as employee’s freedom of speech, because he was continuously able to play fictitious roles as an employee who practiced this democratic value, roles which gave him privileged access to sensitive information. Even if he came as an outsider and used fictitious identities, this type of whistleblowing practice is indisputable. The fictitious dimension in his identity meant that his co-workers and the management trusted him in ways which often gave him access to sensitive information he hadn’t had the possibility to collect otherwise.

 

 

Macro change

An important presupposition for the public recognition of Wallraff’s whistleblowing project might be the change caused by the fall of the Berlin -wall. The analogue view between the communist regimes in the east and the democratic regimes in the west that the counterpart was an enemy they couldn’t trust implied that both parts took their precautions as an expression of mistrust. The West-German public was deeply suspicious towards the radical student-movement in the 1970-ties, from time to time accusing the young Marxist for being communistic spies who intended to undermine the German democracy. This atmosphere might have contributed to a skepticism in parts of the public life when it comes to the reception of Wallraff’s whistleblowing-project, inspired by the radical student movement. Wallraff was accused by the Springer-system for being a spy in favor of the east-German regime. These accusations were considered untrue by the court, but serves however, as an illustrative example of the atmosphere he worked in.

But there might have be a change in the reception of his books after the fall of the wall to a more friendly, open and trustful attitude in the public life of West-Germany.  To which extent the deconstruction of the enemy-relationship between east and west contributed to a more positive reception of Wallraff’s whistle-blowing project is impossible to know in exact terms. But it seems highly probable that this change at the macro-level did contribute in that direction.

 

 

Sources

In the beginning of his authorship he published the book “13 unerwünschte Reportagen”, (1969) where he entered several fictitious roles in order to collect and publish information which revealed circumstances at different places of work which could be an object of sharp public criticism. Later he went undercover in one of Europe’s most aggressive media-organizations when it comes to publish untrue information, the German populistic newspaper “Bild Zeitung”. He worked as an editor in Bild Zeitung in Hanover for 3 months in order to reveal unethical journalistic methods. Books as „Der Aufmacher. Der Mann, der bei „Bild“ Hans Esser war, 1977“, „Buch Zeugen der Anklage. Die „Bild“-Beschreibung, 1979“, „Das „Bild“-Handbuch. Das Bild-Handbuch bis zum Bildausfall,1981“ is important in this context.

The book he was most famous for is probably „Ganz unten“(1985). Wallraff worked since 1983 for two years as a türkish migrant worker,“Ali Levent Sinirlioglu” at different places of work, among them in a Thyssen. The book contains stories about how damaging and terrifying it was to work in the coal dust, at that time known to cause cancer.

Wallraff might have been more occupied in the first period of his authorship than in the later with playing several fictitious roles during a short time period, in order to collect information which might have been more fragmentary.  I the later part of his authorship he seems to have concentrated his efforts more around playing one single role over a longer period of time, in order to collect as much information as possible about how repressed employees experienced the challenges at their working place.

But despite this discontinuity he continuously kept on working the same way; he blew the whistle about unethical and repressive circumstances, because he was of the opinion that it was in the interest of the public to know and discuss this information.

Roots

Wallraff himself has underscored that to use a hidden identity as the main method for collecting information was something he was seriously occupied with not only as an adult, but much earlier, in his youth. He has described himself as a rather nervous young man lacking self-confidence and existential stability.  As a youth he was therefore searching for a new identity in order to conquer the problems of low self-confidence. Towards this background it shouldn’t come as a surprise that he as a youth was dreaming about a new identity based on the use of masks. (Interview January 2016). We also know he did a homework on the same topic when he was at the gymnasium; how to create a new identity on the basis of the use of masks. Furthermore, in the beginning of his twenties he published modern poems about the same type of search for a new identity, probably inspired by Dadaism. There are interesting thematic lines from this artistic and identity-search towards what happened later on. When he entered fictitious roles as a migrant worker from Turkey he dreamt that he was that person. As a tentative conclusion the method of collecting and publishing information as an act of freedom of speech is to some degree based on personal presuppositions; the young man’s fight for a new and more stable identity and self-confidence.

The personal motivation

The personal motivation behind the whistleblowing project could be traced back to at least four sources.

Wallraff has underscored that he enjoyed breaking taboos (interview 2016). He was fond of provocation and to experience that people he challenged was provoked. The element of self-interest is obvious, his reasons for blowing the whistle by breaking important norms was not only done out of altruistic motivation, but also on the basis of what he enjoyed himself.

 On the other hand, the element of altruism comes clearly to the surface when we approach his will to sacrifice himself for the sake of the truth. Several of the fictitious roles he played out into the public sphere involved danger and risk, physical and psychic. Most famous is probably the attitude he reveals in “Ganz unten”, the project where he work in the coal-industry conscious of how dangerous this was for his physical health. According to Wallraff, it was well-known at that time due to medical research reports that the dust in the coal industry could cause cancer. Correspondingly, Wallraff underscored recently that; “I assumed that the larger the pain was for me, the larger was the possibility that people would believe what I published was a true story”. This attitude clearly signifies his will to scarify his physical and psychic health for what he believed in.

Another type of personal motivation comes from Marxism. In the 1970-ties and 80-ties Wallraff was apparently inspired by the radical student movement which played a significant role at the universities in Europe after the revolt in Paris in 1968. Even if he did not directly present any classical Marxist analysis of capitalism linked to a professional vocabulary on how the owners exploited their working-force, his fight for employees’ freedom of speech comes close to this strategy. His categorical criticism of that the management often exploited their workers and his consequently categorical solidarity with the employees that didn’t have any public voice or access to power positions is a clear parallel to the Marxist strategy of his time. The parallel is so close that we could probably talk about a Marxist inspired whistleblowing project.

The vision from his youth; to hide his identity in order to find a new identity and be trusted as another person is apparently another type of personal motivation. Wallraff’s successful use of the method has been an important inspiration for him. He experienced repeatedly that constructing a fictitious identity was an effective mean to receive trust and information he was searching for. The repeatedly search for new identities seems to have created a personal pressure towards what Sartre has called to choose yourself continuously as a new but even so as an empty self, because of the lack of existential continuity.

Interpretation of the Walrlaff-case

How should we consider Wallraff’s method and social theory? As a sort of undercover journalist Wallraff has been very controversial within the sciences of journalism and communication. Indeed, because he applies the undercover methods of journalism on the profession of journalists themselves which caused a lot of controversy in the community of journalists. In this context, his method and activities raise the question of the validity of journalistic research methodology based on undercover journalism and the question of the personal responsibility of the journalist. So seen from this perspective the activities of Wallraff concern the aim and responsibility of investigative journalism. Here, we face the issue of the ethical and social responsibility of journalist in relation to his or her activities in society and the method of Wallraff suggests severe ethical constraints on the method of undercover journalism since it is based on the full personal involvement of the journalist in the activities of investigative journalism.

However, the Wallraff method and case also goes beyond the methods and approaches of investigative journalism. Here we can consider the approach of Wallraff as a contribution to the debate about freedom of speech and whistle-blowing in organizations. The Wallraff-approach is about freedom of speech since it concern the unlimited right to present to the results of investigative journalism based on undercover methods in different organizations and institutions. Following this the case also becomes a case of whistle-blowing in organizations because Wallraff functions as an agent of whistle-blowing for the weak and poor members and participants of these organizations. Accordingly, we can argue that the Wallraff-case deals with three important issues of 1) investigative journalism, 2) freedom of speech and 3) whistle-blowing in organizations. Accordingly, we propose to look at these different dimensions of communication in the perspective of the Wallraff-case.

The ethics of investigative journalism

The Wallraff case proposes a case-experience of the ethics of investigative journalism. A strong criticism of his approach, as suggested in the debates about his activities has been that he violates the morality and ethics of journalism. The main argument against the Wallraff approach is that you are not allowed to lie and conceal the truth about your identity in favor of revealing the truth of the organization or institution that you are investigating. In the 1960s and 1970s this criticism was strongly put forward and it was argued that Wallraff was not serious since he was acting illegally in connection with his hiding of his true identity in connection with his activities. However, following several court cases the German Supreme Court ruled with the Lex Wallraff that the higher goal of attaining the truth justified that Wallraff concealed his identity in connection with his activities of undercover journalism. The idea is that Wallraff was not hiding his identity because of personal goal or intention of doing injustice but because he was interesting in investigating the truth of matter. With this the need to know the truth in the public was more important than the respect for the law in relation to lying. Accordingly, in the name of the freedom of speech and the right to know about injustice of the public the investigative journalist is allowed to hide his identity.

The importance of the Whistle-blower

The Wallraff case addresses whistle-blowing in the context of freedom of speech and investigative journalism. Here, we can say that Wallraff is somebody who acts as an example for individuals to show how you can be a whistle-blower in your organization. But Wallraff is not a whistle-blower in the traditional sense. The normal definition of a whistle-blower is that it is somebody who is internal to an organization and as an employee or other participant in the organization or institution experiences wrongdoing other problems that need to be presented to the public (Rendtorff 2009). In contrast to this the case of Wallraff presents a more active choice of being a whistle-blower since Wallraff uses investigative journalism to report about specific issues and problems in an organization. Here, whistle-blowing becomes an active choice of dealing with problems in organizations and institutions. With this we can say that Wallraff contributes to help whistle-blowers in becoming active and Wallraff becomes an example for whistle-blowers by insisting on reporting about the situation of the poor and oppressed at different levels of society.

With this active selection of a position to become a whistle-blower Wallraff contributes to the definition of the responsibility of the whistle-blower at different levels of society. Whistle-blower can be considered both a micro-meso and macro-levels, which we can deduce from Wallraff’s investigative journalism. At the micro-level whistle-blowing becomes a question of responsibility of reporting the individual experience of life at the bottom of society. Here, whistle-blowing is happening through Wallraff as a standin and voice for the poor and oppressed, i.e. the Turkish worker, the immigrant, the psychiatric patient etc. We can call this a kind stand-in whistle-blowing where Wallraff through his experience of the life of the poor and oppressed in society reports about their conditions and in this sense blows the whistle to be public in society. We can say that Wallraff becomes a kind of stand in existential whistle-blower who reports about the personal conditions of life at the bottom of society.

At the meso-level of whistle-blowing of life in organizations Wallraff represents an active whistle-blower who reports about the wrong-doing in different industries from media with the Springer to different industries with his experience as a worker in different factories in Germany. At this meso-level Wallraff suggests that whistle-blowing in organizations is justified in the name of freedom of expression. Accordingly, we move from the meso-level to the macro-level of society considering whistle-blowing as an integrated part of freedom of expression in democratic societies.

Defense of freedom of expression in democratic societies

With his defense of investigative journalism and the right to whistle-blowing as a part of freedom of expression we can situate the Wallraff-case in the context of famous whistle-blower cases like the Watergate case in the US in the 1970s. We can also mention the Challenger catastrophe in the 1980, the tobacco industry in the US in the 1990s and more recently famous whistle-blower cases like Julian Assange with his Wiki-leak as well as regarding Edward Snowden and ASA in the USA.

In these different cases we find different concepts of whistle-blowing in public and private organizations. These involve that employees inform (blow the whistle) management about risk, problems, corruption, and bribery, criminal or unethical behavior. With this, employees go to the public about whistle-blowing of unacceptable issues in the organization, business or public institution. It is characteristic for such cases that employees break their loyalty in relation to the organization, business or public institution. With his active activities in this kind of whistle-blowing Wallraff has contributed to conceive whistle-blowing as an integrated part of freedom of expression in democratic societies.

Accordingly, the Wallraff-cases can be seen as a contributing to the institutionalization of the importance of whistle-blowing in democratic societies. This defense of whistle-blowing has been important in Europe where whistle-blowing traditionally has been weakly justified. In contrast the situation in the US is different. In FSGO (Federal Sentencing Guidelines for Organizations) the US government has included criteria for whistle-blower protection in order to facilitate reporting. In Europe, on the contrary there has in particular been skepticism in relation to the power of the authorities and to totalitarian regimes. This was indeed the case of authoritarian Germany in the 1960s and 1970s. For example, in Denmark the word ”Varsling” hardly exists and accordingly, the active defense as an integrated part of freedom of speech, as suggested by Wallraff, has been very important.

Theoretical interpretation of whistle-blowing and freedom of expression

Looking at public and private organizations we can mention the importance of the freedom of expression of the employee in public organizations. They need to be able to express themselves about wrongdoing in relation to the public (Larsen 1996). This is needed because of the danger of the total dependence of the employee to the rationality of the organization as it has been described in contemporary social theory. Here we can mention Hannah Arendt’s theory about the banality of evil and moral blindness where the bureaucrat has no connection with morality and ethical thinking outside his or her social role. Moreover, we can refer to Milgram’s theory about obedience to authority, indicating how connection to a system of authority makes individuals act as members of this system. Indeed, Bauman’s theory about bureaucracy and rationalization of organizations confirms this dependence of individual bureaucratic employees on the rational development of economic systems. Habermas’ theory about the public space and freedom expression based on deliberative democracy provides the normative resources for justifying whistle-blowing by public employees as a part of the defense of freedom of expression. Situated within this framework the contribution of Wallraff documents the necessity of an active approach to problems in public bureaucracy and private organization and corporations, based on a democratic and critical approach to public organizations.

An important reason for the need of active whistle-blowing may be the problem of moral blindness in public and private organizations. The concept of moral blindness is described by Frederick Bruce Bird in The muted conscience: moral silence and the practice of ethics in business (Bird 1996). Moral blindness means that individuals in an organization are not able to see moral problems. Moral deafness imply that they do not listen to people who speak about moral problems. And moral muteness implies the failure failure to speak up. Accordingly, it is the activity of the whistle-blower and the investigative journalist to reveal these dimensions of moral blindness, deafness and muteness in organizations to the public.

It is also important to take into account the social psychology of organizations. Philip Zimbardo, Social psychologist, develops his idea of the Stanford Prison experiment from 1971 in the book The Lucifer Effect: Understanding How Good People Turn Evil, Random House 2007. Zimbardo found that social roles determine evil action in organizations. He has now started The heroic Imagination Project about heroes in organizations as Whistle-blowers. Indeed, Günter Wallraff fits very well the qualification of being such a hero.

Implications for research in Whistle-blowing in organizations

What are the possible research implication of the Wallraff case and methodology for research in free speech and whistle-blowing in public and private organizations? We can argue that whistle-blowing and free speech as essential for a good organizational climate. Therefore, the investigative journalism, combined with active whistle-blowing is important for ethics of organizations, free speech in organizations and for overcoming moral blindness in organizations.

Themes for research in whistle-blowing in organizations following the Wallraff methodology include case-studies of moral climate in organizations, dimensions of communication challenges with regard to free speech, organizational disaster and lack of free speech in organizations; Problems of organizational climate with regard to free speech in organizations, establishment of procedures for Hot-lines for reporting disorder and fraud in organizations.

So the aims of this research could include investigation of cases of communication climate in organizations. We should also look at investigations of dimensions of moral blindness and deafness and in particular muteness in organizations with regard to speaking up. Moreover, we need to consider investigations and evaluations of examples of institutional frameworks for good whistle-blowing as well as development of a framework for justified whistle-blowing and free speech in organizations.

This framework for these investigations would include background reflections about freedom of speech and responsibility of speech. In this context, there is a difference between national norms and different national ethos in relation to whistle-blowing. And there would also be differences in motivation for whistle-blowing and freedom of speech. This is also the case when we move from micro- and meso-levels towards the investigation of the relation between freedom of speech, whistle-blowing and international politics.

Alm, Kristian & Jacob Dahl Rendtorff: Interview with Günter Wallraff, January 2016.

Alm, Kristian, Mark Brown & Sigrid Røyseng (eds):  Kommunikasjon og ytringsfrihet i organisasjoner, (Cappelen Damm, Oslo 2016)

Bird, Frederick Bruce: The muted conscience: moral silence and the practice of ethics in business (Quorum Books Westport, Conn 1996).

Larsen, Øjvind: Etik og forvaltning, (Reitzels forlag, København 1996).

Rendtorff, Jacob Dahl: Responsibility, Ethics and Legitimacy of Corporations, (Copenhagen: Copenhagen Business School Press 2009).

The Norwegian Commission on freedom of Speech (Oslo 1999).

Wallraff, Günter (1969):  “13 unerwünschte Reportagen”, (KiWi-Taschenbuch, Köln 2002)

Wallraff, Günter  „Ganz unten“ (1985),  (KiWi-Taschenbuch, Köln 2002)

Zimbardo, Philp: The Lucifer Effect: Understanding How Good People Turn Evil, (Random House, New York 2007).

IMMI and Whistleblowing in Iceland – The New Regulatory Framework

Conference proceedings (triple non-blind peer review), ,

 

 

1. The importance

IMMI is a unique and fascinating attempt to create very modern media law regulations in Iceland.[1]  IMMI plans always included a strong focus on whistleblowing regulation.[2]  Whistleblowing is not only an important issue in cases such as those of Wikileaks or Snowden. It has become a significant feature of international compliance systems. This particularly applies to international corporations bound by the US Sarbanes-Oxley Act (hereafter: “SOX”).[3] SOX requires publicly held US companies and their EU-based affiliates, as well as non-US companies, listed in one of the US stock markets, to establish within their audit committee “procedures for the receipt, retention and treatment of complaints received by the issuer regarding accounting, internal accounting controls or auditing matters; and the confidential, anonymous submission by employees of the issuer of concerns regarding questionable accounting or auditing matters”.[4] In addition, Section 806 of SOX lays down provisions aimed at ensuring the protection for employees of publicly traded companies that provide evidence of retaliatory measures taken against them for making use of the reporting scheme.[5] The Securities and Exchange Commission (SEC) is the US authority in charge of monitoring the application of SOX.[6] As a consequence, major European companies already have to install whistleblowing systems in compliance with the SOX requirements.

 

 

2. Whistleblowing in Europe

The importance of whistleblowing has been stressed by several European legislators and regulatory bodies.  In its Resolution 1729 (2010) on the protection of “whistleblowers”, the Parliamentary Assembly of the Council of Europe[7] stressed the importance of “whistleblowing” as an opportunity to strengthen accountability and bolster the fight against corruption and mismanagement, both in the public and private sectors. It invited all member States to review their legislation concerning the protection of “whistleblowers”. The Council of Europe demanded a strong protection for anyone who, in good faith, makes use of existing internal whistleblowing channels from any form of retaliation (unfair dismissal, harassment or any other punitive or discriminatory treatment). In its view, external whistleblowing, including through the media, should likewise be protected where internal channels either do not exist, have not functioned properly, or could reasonably be expected not to function properly given the nature of the problem raised by the whistleblower.

 

Under the European Convention of Human Rights, the European Court for Human Rights (ECHR) ruled by judgment, dated 21 July 2011 (no. 28274/08),[8] that employees who publicly disclose deficiencies within the enterprise of their employer cannot be terminated without notice.[9] However, the Court determined a number of factors when assessing the proportionality of the interference in relation to the legitimate aim pursued. In the first place, particular attention shall be paid to the public interest involved in the disclosed information. The Court reiterates in this regard that there is little scope under Article 10 § 2 of the Convention for restrictions of debate on questions of public interest. Moreover, the ECHR stressed that freedom of expression carries with it duties and responsibilities and any person who chooses to disclose information must carefully verify, to the extent permitted by the circumstances, that it is accurate and reliable. The ECHR focused as well on the damage, if any, suffered by the employer as a result of the disclosure in question and the assessment of whether such damage outweighed the interest of the public in having the information revealed.

 

Finally, the EU Commission has recently published a new directive in the protection of trade secrets.[10] The draft of November 2013 includes the first express regulation on whistleblowing in the EU. According to Art. 4 (2) (b) of the draft directive, the (broad) protection of trade secrets is limited “for the purpose of revealing an applicant’s misconduct, wrongdoing or illegal activity, provided that the alleged acquisition, use or disclosure of the trade secret was necessary for such revelation and that the respondent acted in the public interest”. 

 

Apparently, the Commission used the criteria mentioned by the Council of Europe and the ECHR in the case mentioned above and integrated them in the directive. The Directive has already been agreed upon the Council of Ministers in Summer 2014 and will thus enter into face probably in Winter 2014.

 

 

3. And the duties: Public whistleblowing platforms and press law

A future regulation of whistleblowing systems should involve matters of personality rights or rights to privacy.[11]  Public whistleblowing internet platforms are furthermore subject to press law and as such bound to the same duties and privileges by the same rights as traditional press.[12] This classification can be based upon the judgements, for instance, of the European Court of Justice. In the Satakunnan case[13], the Court ruled that the term “journalistic purposes” has to be interpreted broadly due to the significance of freedom of expression in a democratic society. It should include “the mere fact of making raw data available”. For being classified, it is enough that the “information communicated relates to a public debate which is actually being conducted”. This approach points to an inclusion of whistleblowing platforms into existing press law regulations.[14] Hence, if treated equally, the same principles as for the traditional press have to apply to whistleblowing platforms. This involves application of the standards for weighing data protection and privacy law on the one hand and freedom of press on the other hand, as determined by the European Court of Justice. The platforms have to consider and check the value of documents and not only in good faith pursuant to Art. 5, but according to the same ethical and legal standards as the traditional press.[15] As “press”, whistleblowing platforms have in particular to consider the presumption of innocence.  In return, they get the same privileges as the “press”, including the protection of sources or exemptions from the application of data protection laws. [16]

 

[1] See my comments on the first IMMI plans in CRi 2010, 141; published at http://www.uni-muenster.de/Jura.itm/hoeren/veroeffentlichungen/hoeren_veroeffentlichungen/IMMI_The_EU_Perspective.pdf 

[2] See Disclosure of Information and Protection of Whistleblower Bill, case no. 453; http://www.althingi.is/altext/141/s/0572.html

[3] Cf. Saelens/Galand, (2006) 3 European Company Law, Issue 4, 170.

[4] Sarbanes-Oxley Act, Section 301(4).

[5] For the effect of SOX on whistleblowing see Mowrey et al., 1 William & Mary Business Law Review, 431-449 (2010)

[6] Sarbanes-Oxley Act, Section 406.

[9] For the US approach see the US Supreme Court decision Garcetti v. Ceballos 547 U.S. 410 (2006).

[10] Proposal on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure, COM(2013) 813 of 28 November 2013.

11 See for that balance WP 117/Opinion 1/2006 of the Art. 29 Group on the application of EU data protection rules to internal whistleblowing schemes in the fields of accounting, internal accounting controls, auditing matters, fight against bribery, banking and financial crime, published http://ec.europa.eu/justice/policies/privacy/docs/wpdocs/2006/wp117_en.pdf

[12] It is interesting to note that Icelandic whistleblowing platforms call themselves “press” (i.e. the “Associated Whistle Blowing Press”).

[13] Case C-73/07 Tietosujvaltuutettu v Satakunnan Markkinopörssi Oy and Others.

[14] ECJ , Tietosuojavaltuutettu v. Satakunnan Markkinapörssi Oy, Case C?73/07, I-09831 paragraph. 56.

[15] Cf. Infobank, (1995) 16 Business Law Review, Issue 2, 41, 48.

[16] There is a lot of literature focusing on external whistleblowing as press; see for instance Corneil, 41 Cal. W. Int’l L.J. 477 (2010-2011); Bacon/Nash, 21 Australian Journalism Review, 10 (1999) with further references.