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whistleblowing
This page looks at whistleblowing: disclosure of corporate
information in the public interest, despite commercial
agreements or secrecy legislation.
It covers -
Whistleblowing
in Australia is discussed in the following page of this
guide. A supplementary note
discusses particular whistleblowing cases in more detail,
along with pointers to academic and other studies.
introduction
What of disclosure of information in the public interest,
despite employment contracts, non-disclosure agreements,
trade secrets legislation and enactments governing the
conduct of public servants?
Typically whistleblowing involves an 'insider' in an organisation
taking concerns to -
- a
supervisory entity within/for that organisation (eg
to a board of directors, bypassing executives, or to
an accounting or standards compliance body)
- a
government regulatory agency or legislature, or
- the
media
in
the knowledge that the organisation may respond with litigation
and vilification and that colleagues (particularly in
technical communities such as medicine, law and the police)
may be unsupportive.
JG Starke's 1991 'The Protection of Public Service 'Whistleblowers'
(in The Australian Law Journal, Vol 65, No 4)
defines public sector whistleblowing in the context of
Australian law as -
- a
disclosure of information evidencing objectionable misconduct,
not otherwise known or visible;
- such
disclosure is made in the reasonable belief that this
information demonstrates that there had been such misconduct;
- the
person making the disclosure acts in good faith, without
malice;
- the
disclosure is made in the public interest with a view
to ensuring that the community has an effective civil
service; and [more problematically]
-
the disclosure is not specifically prohibited by law,
or considerations of national security or defence would
not preclude it being made.
One
commentator wryly adds that disclosure "usually occurs
in a way whereby the whistleblower (either intentionally
or accidentally) is identified publicly with the complaint,
and claims that the principle motive for the disclosure
was to advance the public interest."
Contrary to some studies, whistleblowing is not a new
phenomenon that appeared in the 1960s. Legislation specifically
protecting and encouraging disclosure by 'whistleblowers'
dates from the past four decades but instances can be
tracked to at least the 1780s (with for example Thomas
Cochrane's The Autobiography of a Seaman exposure
of corruption within the British navy and contractors)
and the beginning of last century with works such as the
exposé by Wilhelm Muehlon, ex-Director of the Krupp
industrial group.
The US Government Accountability Project comments that
whistleblower legislation is an essential underpinning
for civil society, protecting -
individuals who in various societies have been termed
"whistleblowers," "bell ringers,"
and "lighthouse keepers." All expressions
refer to a common identity – an individual who
warns of threats to the public by serving as a "people’s
witness." ...
This form of freedom of expression is a basic human
right. People's witnesses are the lifeblood for efforts
to prevent, investigate and prosecute corruption. They
personify a basic premise of jurisprudence that "sunlight
is the best disinfectant." Without the free flow
of information from knowledgeable witnesses, anti-corruption
campaigns are empty and lifeless. Experience demonstrates,
however, that in a repressive environment they will
be silent observers instead of speaking out on behalf
of the public. Freedom of expression provides our citizens
the freedom to be partners in genuine challenges to
corruption.
William
de Maria comments that whistleblowing is
a
complex social phenomenon. Solo acts of disclosure in
the public interest, whistleblowing is both pro-social
and anti-social.
It's good for society because it exposes wrongdoing
and it gives a battery charge to tired old democracy,
and it's good for our kids to see a few moral heroes
up there with their sporting and movie icons.
Whistleblowing is anti-social because it erodes trust
among work colleagues. We as a nation do not discriminate
between whistleblowing and its ugly sister, dobbing.
In our consciousness these are scrambled: we hate dobbers
and we will continue to confuse them with whistleblowers
for at least another generation.
He
suggests that there is a cost as "we move from a
work culture where no one would, or could disclose, to
one where today's workmate could be tomorrow's informer".
In a 2003 speech (PDF)
ACCC chief executive Fels noted that
There have been some important ACCC cases where the
whistleblowers' motives for incriminating their employer
were not especially altruistic. In one of our most important
cases our whistleblower was an employee who discovered
that his wife was having an affair with his boss. Angered
by this he let us know about meetings his boss was attending
where unlawful arrangements were being entered in to
with competitors. Likewise there are occasions where
a competitor may be the whistleblower. The aim of the
competitor may simply be to improve their own position
at the expense of their competitor but it still persists
with the process of more enforcement
What
happens after the whistle is blown? Nick Perry's 1998
sociological analysis Indecent Exposures: Theorizing
Whistleblowing comments that
The
case material indicates that the characteristic trajectory
of whistleblowers' careers (after they have gone public)
is, with few exceptions, a downward spiral. There is
the further prospect that this will be linked to a blame-the-victim
strategy, i.e. that the associated psychological deterioration
may be cited as a vindication of the imposition of sanctions
in the first place. Whistleblowing might well be classified,
therefore, as a form of occupational suicide - or perhaps
as accidental career death.
US
whistleblower Sherron Watkins commented that disclosing
inappropriate behaviour at Enron was a "lonely road
to take", arguing against the term whistleblower
because it had a pejorative ring to it.
studies and spectacles
US academic and privacy expert Alan Westin edited Whistle
Blowing! Loyalty & Dissent in the Corporation
(New York: McGraw-Hill 1981). Whistleblowing in the
Social Services: Public Accountability & Professional
Practice (London: Arnold 1998) edited by Geoffrey
Hunt, Elaine Kaplan's 2001 The International Emergence
of Legal Protections for Whistleblowers (PDF)
and The Legal Implications of Disclosure in the Public
Interest (Oxford: Oxford Uni Press 1987) by Yvonne
Cripps are of similar value.
Christine Parker's valuable The Open Corporation:
Self-Regulation & Corporate Citizenship (Melbourne:
Cambridge Uni Press 1986) and Global Business Regulation
(Cambridge: Cambridge Uni Press 2000) by John Braithwaite
& Peter Drahos consider the responsibilities of executives,
corporate directors, government agencies and notions of
self-/co-regulation.
They are complemented by Terry Morehead Dworkin’s
2002 Whistleblowing, MNC's and Peace (PDF).
She commentes that
Whistleblowing
is seen as one way to obtain, or regain societal control
over the large organizations that increasingly dominate
society. The premise behind recent governmental promotion
of whistleblowing is that people of conscience work
within these large, complex organizations, and would
normally take action against wrongdoing except for fear
of losing their jobs or other forms of retaliation.
Thus, if adequately protected from retaliation, they
will come forward with evidence of wrongdoing before
it would be detected externally, if discovered at all.
Harms from the wrongdoing could be reduced, wrongful
behavior stopped, and the expense of public oversight
and investigation would be reduced if such reporting
occurs. Also, if whistleblowing proved a relatively
common occurrence, wrongdoing would decrease because
potential wrongdoers would be aware that their activities
were not as secret as they might otherwise be.
David
Lewis' 2001 Middlesex University inaugural lecture
discusses principles and enactments in Australia, South
Africa, the UK and New Zealand. Papers in Whistleblowing
at Work (London: Athlone Press 2001) edited by Lewis
offer insights about the UK legislation.
For the UK there is a useful introduction in Clive Ponting's
The Right to Know: The Inside Story of the Belgrano
Affair (London: Sphere 1985), Whistleblowing:
The Disclosure of Wrongdoing (London: Sweet &
Maxwell 1999) by John Bowers, Whistleblowing - Subversion
or Corporate Citizenship? (London: Chapman 1994) edited
by Gerald Vinten and Sheryl Groeneweg's 2001 paper
for Industry Canada on Three Whistleblower Protection
Models: A Comparative Analysis of Whistleblower Legislation
in Australia, the United States & the United Kingdom.
For a US perspective consult The Whistleblowers: Exposing
Corruption in Government & Industry (New York:
Basic Books 1989) by Myron & Penina Glazer, Freedom
Inside the Organization: Bringing Civil Liberties to the
Workplace (New York: Dutton 1977) by David Ewing and
the Government Accountability (GAP)
site. A perspective is offered by Nicholas Lampert's Whistleblowing
in the Soviet Union (London: Macmillan 1984).
For Australia insights are offered by the NSW Professional
Standards report
on Whistleblowing In The Professions and In
The Public Interest, the 1994 report of the Senate
Select Committee on Public Interest Whistleblowing.
For Australian public sector whistleblowing see in particular
the Australian Law Reform Commission report
Integrity: but not by trust alone - AFP & NCA
complaints and disciplinary systems regarding the
Australian Federal Police and National Crime Authority.
Other studies include Blowing the Whistle: The Organizational
& Legal Implications for Companies & Employees
(New York: Lexington Books 1992) by Marcia Miceli &
Janet Near, Whistleblowing at Work: Tough Choices
in Exposing Fraud, Waste & Abuse on the Job (Boulder:
Westview 1999) by Terence Miethe and Bureaucratic Opposition:
Challenging Abuses at the Workplace (New York: Pergamon
1979) by Deena Weinstein.
The historical flipside of whistleblowing is discussed
in Accusatory Practices: Denunciation in Modern European
History, 1789-1989 (Chicago: Uni of Chicago Press
1996) edited by Sheila Fitzpatrick & Robert Gellately;
other pointers such as Comrade Pavlik: The Rise and
Fall of a Soviet Boy Hero (London: Granta 2005) by
Catriona Kellyfeature in our profile on surveillance.
Betrayers of the Truth: Fraud and Deceit in Science
(Oxford: Oxford Uni Press 1985) by William Broad &
Nicholas Wade highlights issues within scientific communities.
We have highlighted a range of studies here
regarding whistleblowing by current/former operatives
of intelligence agencies, such as Malcolm Turnbull's book
on the 'Spycatcher Affair' in Australia and the UK, and
controversies such as Mordecai Vanunu's disclosure of
activity at Israel's Dimona facility.
Whistleblowing in popular culture has had mixed treatment,
with discomfort about delation perhaps resulting in most
attention on the 'intrepid reporter' genre. US feature
films include All The Presidents Men (1976),
Silkwood, Serpico (1973), The China
Syndrome (1979), Three Days of the Condor
(1975), Mr Smith Goes To Washington (1939) and
The Insider (1999).
A supplementary note
on this site discusses particular whistleblowing cases.
New Zealand
Whistle blower protection legislation in New Zealand centres
on the Protected Disclosures Act 2000 (PDA),
essentially concerned with government agencies.
The literature includes Secrets & Lies: The Anatomy
of an Anti-Environmental PR Campaign (Nelson: Craig
Potton 2000) by Nicky Hagar & Bob Burton, which followed
leaking in 1999 of documents from the Shandwick public
relations consultancy regarding work for the NZ forestry
agency.
UK and the PIDA
In the UK the primary legislation is the Public Interest
Disclosure Act 1998 (PDF).
It provides protection for disclosure relating to a specified
list of malpractices: a criminal offence or failure to
comply with a legal obligation, a miscarriage of justice,
damage to the environment, endangerment of a individual's
health and safety or concealment of any of these malpractices.
Disclosure to an employer will be protected if made in
good faith. Disclosure to a legal adviser need not be
made in good faith, as an employee must simply have a
reasonable belief that disclosure shows one of the specified
malpractices. Disclosure to designated regulatory bodies
must be made in good faith and relate to that body's responsibilities.
Disclosure to other entities, such as the media, involves
stricter tests. It must be made in good faith and the
whistleblower must reasonably believe that the information
is substantially true, not make the disclosure for personal
gain and reasonably believe they will suffer if the disclosure
is made to the regulator or that evidence will be concealed
or destroyed if made to their employer.
An overview is provided by Gordon Borrie & Guy Dehn's
paper
Whistleblowing: The New Perspective and Geoffrey
Hunt's Whistleblowing in the Social Services: Public
Accountability and Professional Practice (London:
Arnold 1998). UK whistleblower policy and support organisation
Public Concern at Work (PCaw) publlished Whistleblowing
Case Summaries: Notable Decisions under PIDA, a report
with summaries of 70 notable legal decisions under the
Act.
Protection in other parts of Europe is more problematical.
German courts have for example ruled that codes of conduct
that encourage employees to report misconduct to a whistleblower
hotline breach German labour laws. The French Data Protection
Authority similarly refused in 2005 to authorise establishment
of anonymous whistleblower hotlines, commenting that such
lines were "disproportionate to the objectives sought
with the risks of slanderous denunciations". Enthusiasts
for such lines responded by simply moving them to another
jurisdiction.
US
A range of US legislation at the federal and state levels
covers obligations on corporate directors, employees and
public officials to report on improper behaviour within
the public and private sectors.
The US federal model is based on a multilateral system
whereby whistleblowers can petition the Office of Special
Counsel (OSC)
and other agencies for protection against retaliation
due to reporting of "wasteful or illegal" activities
involving government. The Whistleblower Protection
Act (WPA)
of 1989 - extended in 1994 to cover employees of some
government corporations and to employees in the Veterans
Administration - prohibits the federal government from
reprisals against employees who blow the whistle on public
sector misconduct and provides a means of redress. Computingcases.org
features
a discussion of the 1989 Hughes case.
'Qui Tam' provisions are featured in the 1986 False
Claims Act (here),
the latest version of the 1863 'Lincoln Law' enacted under
President Abraham Lincoln to combat corruption relating
to the Union Army. In principle those provisions allow
any citizen to sue on behalf of the US in the case of
fraud or misuse of public property.
In effect, the law allows citizens to become public prosecutors
and receive up to 15% of civil fines (claimed
as aggregate US$9 billion as of 2003 and reported as US$12
billion in late 2004). The highest reward so far appears
to be US$77 million received by Douglas Durand in 2001
in connection with impropriety by TAP Pharmaceuticals.
The federal regime also features the Insider Trading
& Securities Fraud Enforcement Act of 1988, Military
Whistleblower Protection Act and Intelligence
Community Whistleblower Act 1998. The latter, discussed
in the 2005 FAS National Security Whistleblowers
report (PDF),
encourages employees of the 'intelligence community' to
contact Congress but only through the Intelligence Committees.
The report notes that intelligence agency whistleblowers
"operate within a system of mixed messages". The SEC proclaims
that under the Insider Trading Act it is authorised
to reward whistleblowers but in the 18 years to 2006 it
has paid an aggregate US$67,570.
In 2004 the FTC's A CAN-SPAM Informant Reward System:
A Federal Trade Commission Report to Congress (PDF)
asked whether rewards to whistleblowers are necessary
for effective operation of US anti-spam legislation, commenting
that
potential
whistleblowers would weigh the possibility of a reward
against a number of opposing considerations: the likelihood
of information they submitted actually being used, and
whether the use would result in a successful legal proceeding;
whether they would lose their own income; whether they
would incur personal legal liability for their own part
in the scheme; whether they would lose their anonymity;
and whether they would become a target of retaliation
by the spammer.
The
2002 Sarbanes-Oxley Act, passed after the collapse of
Enron and other disasters explored here,
requires corporations to have systems for the internal
reporting of misconduct to supplement surveillance by
government agencies and reporting by third parties such
as accounting firms. The 2002 Notification & Federal
Anti-Discrimination and Retaliation Act (aka No
FEAR Act) makes Federal agencies individually accountable
for violations of anti-discrimination and whistleblower
protection laws.
Bodies concerned with whistleblowing include -
- Government
Accountability Project (GAP)
- Project
on Government Oversight (POGO)
- Taxpayers
Against Fraud (TAF)
- National
Whistleblower Center (NWC)
GAP
has presented the Organisation of American States with
a 'Model Law' (here)
to implement Article III, Section 8 of the Inter-American
Convention Against Corruption by
protecting
those public servants and private citizens who exercise
their human right to freedom of expression, by acting
on their duty to disclose and challenge corruption.
Insights
are offered by Divided Loyalties: Whistleblowing at
BART (West Lafayette: Purdue Uni Press 1980) by Robert
Anderson, Robert Perruci & Leon Trachtman and works
on the cases noted below.
Canada
New Brunswick is the only Canadian jurisdiction providing
specific protection (under its Employment Standards
Act) for whistleblowers.
Several federal and provincial enactments (primarily concerned
with environmental protection and public health) provide
more targeted protection. The Canadian Human Rights Act
for example prohibits any person from
threatening,
intimidating, or discriminating against an individual
because that individual has made a complaint, given
evidence, or assisted in the initiation or prosecution
of a complaint under the Act.
the academy
Whistleblowing in the sciences - and more generally in
the academy - has centred on administrative misconduct,
plagiarism and manipulation
of data.
Two points of entry into the literature are Marcel LaFollette's
Stealing Into Print: Fraud, Plagiarism & Misconduct
in Scientific Publishing (Berkeley: Uni of California
Press 1992) and Daniel Kevles' sobering The Baltimore
Case: A Trial of Politics, Science & Character
(New York: Norton 1999). Documentation regarding a recent
Australian incident is accessible from the UNSW page here.
whistleblowing, the net and the media
Theorists have suggested that the internet is likely to
become important as a mechanism for whistleblowing, offsetting
restrictions on mainstream media (in particular the tendency
to self-censor in the face of private sector litigation
or government suppression orders) through global access
to
- images
or transcripts of documents and
- associated
commentary
In
a 2000 interview US whistleblower Daniel Ellsberg for
example suggested that the web might have the same impact
as the photocopier.
In practice most whistleblowers appear to have approached
(or been coopted by) traditional media and entities such
as parliamentary committees, rather than self-publishing
or providing documentation to activists in other jurisdictions.
Questions of professional privilege, in particular protection
for journalists against disclosure of information provided
on a confidential basis, are explored in the following
page of this guide.
programs and ethics
Whistleblowing programs are as much about corporate culture
(and the efficacy of action by third parties) as they
are about formal standards and aspirational statements.
Internal whistleblowing programs aim to
- underpin
corporate standards and codes of ethics (or codes of
ethics that cover a particular profession)
- encourage
employees to bring legal, financial or other malpractice
to the attention of an internal authority for action
on a timely basis
- minimise
the organisation's exposure to the damage that can occur
when employees circumvent internal mechanisms
- obviate
the need for intervention by another body, eg in response
to inaction after concerns were brought to the attention
of an authority within the organisation
In
large organisation those programs often feature formal
whistleblowing procedures and positions (eg in accord
with the Standards Australia whistleblowing standard noted
above) and hotlines that may accommodate anonymous reporting.
Whistleblowing to external entities - whether to a government
regulatory body (often under-staffed, slow to move or
indifferent to the concerns of the whistleblower) or to
a professional body (eg a bar association or medical association)
may involve meetings, correspondence or calls to a hotline.
Some whistleblowers appear to regard formal channels as
too risky and instead rely on the classic leak of documents
or unattributed briefing of a journalist, a task that
can call on skills in media management.
Impediments to a successful internal whistleblowing program
include
-
lack of trust in the organisation's system for identifying
and responding to malpractice
- perceptions
that whistleblowers are "dobbers"
- concerns
about retaliation in the workplace (including lack of
legal protection)
- concerns
about potential defamation
or other litigation
- expectations
about little support from unions and alienation from
peers
next page
(Australian whistleblowing)
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