Whistleblowing and the UNCAC: Protecting people who report corruption

Reporting on the illegal or immoral activities of an individual or organisation is commonly called whistleblowing.

Whistleblowing is one of the most effective ways of exposing, fighting and remedying corruption.

Whether whistleblowers are government accountants who report on the misspending of public money or company scientists who expose the payment of bribes to cover up the release of toxic waste, they are essential for revealing wrongdoing and protecting the public interest.

Whistleblower protection: Why is it essential?

Whistleblowers often take great personal and professional risks in order to report wrongdoing. Around the world, they are routinely harassed, fired, arrested, sued, attacked or even killed for exposing misconduct.

Whistleblowers need strong legal protections to shield them from retaliation and enable them to report offences safely and freely.

Even where there are laws in place to protect whistleblowers they are rarely enforced or they are outright ignored. But, where legal protections work – and with the support of elected officials, civil society and investigative journalists – whistleblowers have saved countless lives and billions of dollars in public funds.

Food and water are safer, governments are more transparent, companies are more accountable, human rights are defended, and the rule of law is strengthened thanks to the brave actions of whistleblowers.

Obstacles to whistleblower protection

Whistleblowers – and the practice of whistleblowing itself – are up against strong opposition in all parts of the world. Not only do whistleblowers often face criticism and hostility, but elected officials, civil society organisations and citizens who push for strong laws and institutions to protect whistleblowers often face intimidation and lack of support.

Many factors stand in the way of whistleblower laws being passed and enforced. The political status quo, opposition from industry and labour organisations, lack of support from citizens and the media, and strong cultural and historical forces that in many places continue to label whistleblowers as “traitors” and “snitches”, all serve to make whistleblower legislation difficult to pass and complicated to enforce.

The UNCAC: How does it help?

Whistleblowers provide the voice to expose corruption, but whistleblower laws give them the vital legal protection from retribution and help to ensure that their disclosures make the greatest positive impact.

The UN Convention against Corruption binds all of its signatory countries to consider legal provisions to protect people who report corruption-related offences from retaliation.

In Article 33 (Protection of reporting persons), it provides for whistleblower protection:

Each State Party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention.

The implementation of Article 33 into domestic legal systems is crucial to protect whistleblowers and make their contributions matter.

Due to the UNCAC, as well as other international and regional frameworks, and the work of NGOs and citizen movements, the need to provide whistleblowers with legal protections and safe avenues to report corruption has become more widely accepted than ever.

Today, new or improved whistleblower laws are under consideration in dozens of countries, many of which are UNCAC signatories. Since 2010, whistleblower legislation has been passed in Australia, Belgium, Bosnia and Herzegovina, Greece, Hungary, India, Ireland, Italy, Jamaica, Luxembourg, Malta, Morocco, Peru, Slovenia, South Korea, Uganda and the US. All of these countries have signed and ratified the UNCAC.

UNCAC forums: What are they doing to advance whistleblower protection?

UNCAC forums, such as the Conference of State Parties, the Implementation Review Group and the Working Group on Prevention can consider and adopt proposals on the issue of whistleblower protection. The UNCAC Coalition is making the most of these opportunities.

In June 2013, TI and the UNCAC Coalition organised a panel discussion at the UN in Vienna, featuring leading international experts Tom Devine, legal director of the Government Accountability Project and Franz Chevarria, adviser to the OAS. The discussion was held during a briefing session of the Implementation Review Group (IRG), which was established by states to monitor how well the UNCAC is being implemented.

TI presented its in-depth report, Whistleblower Protection and the UN Convention against Corruption, which found that the UNCAC review process does not pay enough attention to the issue of whistleblower protection, and that the IRG should recommend that governments take more action on whistleblowing. TI also presented its International Principles for Whistleblower Legislation, which are the first standards developed by an international NGO to help shape whistleblower protection laws.

In 2013 the Conference of States Parties met in Panama and the UNCAC Coalition advocated for it to adopt a resolution requesting UNODC to prepare a thematic report and guidelines on whistleblower protection.

However, UNODC had already started working on a report on whistleblower protection ahead of the conference and Resolution 5/4 on Follow-Up to the Marrakech Declaration on Prevention of Corruption adopted at the 5th Conference of State Parties:

Welcomes “the Secretariat’s initiative to develop a compendium of good practices on protection measures for reporting persons as well as witnesses, victims and experts” (paragraph 31)

Since the conference, UNODC has reached out to UNCAC Coalition members and other civil society groups for inputs with respect to the compilation of the compendium of good practices.

Using the UNCAC at the national level to protect whistleblowers

Whistleblower protection is currently under review in the UNCAC’s first five-year review cycle on “criminalization, enforcement and international cooperation”. About 30 UNCAC Coalition members and TI national chapters have prepared UNCAC parallel reports. These reports track how well signatory countries are complying with the UNCAC and they cover country performance on whistleblower protection as one of their topics.

UNCAC Coalition groups use the UNCAC parallel reports to support advocacy for improvements in whistleblower protection. TI national chapters in Australia, Greece, Italy and Ireland were instrumental in the passage of new whistleblower laws in their countries. In Canada, Kenya, Lithuania, Luxembourg, Macedonia and Taiwan, TI national chapters have been engaged in campaigns to improve whistleblower protection and awareness.

In 2013 and 2014 alone, new whistleblower protection laws took effect in Australia, Belgium, Bosnia and Herzegovina, Greece, Hungary, India, Ireland, Malta and the US. Proposed laws have been developed in Albania, Iceland, Kenya, Montenegro and Serbia. Existing laws are being reviewed in Germany, Sweden and the UK.

Innovative changes to encourage whistleblowing

The introduction of compensation and reward programmes for whistleblowers has led to more whistleblowers stepping forward.

The US False Claims Act provides rewards to people who report fraud and abuse in government contracting. This law is widely seen as the world’s most successful and effective whistleblower law. It has led to the recovery of US$35 billion in fines, and in lost and stolen taxpayer money since 1986 – including a record US$4.9 billion in 2012. Also in 2012, the year after South Korea passed its Protection of Public Interest Whistleblowers Act, the government there recovered about US$10 million stemming from 40 cases initiated by whistleblowers.

The increasing transparency of retaliation cases brought by whistleblowers in Canada, the UK and the US has also helped the public assess how well the laws in these countries are working. The public availability of rulings in these cases has been critical in crafting proposals to strengthen whistleblower protection legislation.

Resources

Guidance and best practice

Whistleblower laws have now been on the books in some countries for 20 years or more. During this time, a sufficient number of cases have arisen for guidelines and best practices to be developed by a number of NGOs and international organisations:

• Transparency International: International Principles for Whistleblower Legislation
• Government Accountability Project: International Best Practices for Whistleblower Policies
• Open Society Justice Initiative: Global Principles on National Security and the Right to Information (“Tshwane Principles”)
• Organization of American States: Model Law to Facilitate and Encourage the Reporting of Acts of Corruption and to Protect Whistleblowers and Witnesses
• OECD for G20: Study on G20 Whistleblower Protection Frameworks, Compendium of Best Practices and Guiding Principles for Legislation
• Council of Europe: Recommendation on the Protection of Whistleblowers adopted by the Committee of Ministers in April 2014 CM/Rec(2014)7

Research

The amount of in-depth research on whistleblower laws and the issue of whistleblowing in general has increased in the past decade:

• Whistleblower Protection and the UN Convention against Corruption
• Whistleblowing in Europe: Legal Protections for Whistleblowing in the EU
• Whistleblowing: The Inside Story
• The Whistleblowing Commission: Report on the effectiveness of existing arrangements for workplace whistleblowing in the UK
• The Current State of Whistleblower Law in Europe
• The Protection of Whistleblowers: A study on the feasibility of a legal instrument on the protection of employees who make disclosures in the public interest

Many outstanding books have also been written about whistleblowing:

• The Corporate Whistleblower’s Survival Guide (2011)
• Successes and Failures of Whistleblower Laws (2012)
• The Whistleblower’s Handbook (2013)
• Whistleblowing: A Practical Guide (2013)
• Whistleblowing Around the World: Law, Culture and Practice (2004)
• Whistle-Blowing in Organizations (2008)
• Whistle Blowing, Ralph Nader, Peter Petkas and Kate Blackwell (1972)
• Petit Manuel de Désobéissance Citoyenne (2014)

Organisations working on whistleblowing

A growing number of CSOs are working to support and defend whistleblowers, advocate for stronger legal rights and protections for whistleblowers, and push for the strong enforcement of whistleblower protection laws. The most prominent include:

• Blueprint for Free Speech, (International)
• Canadians for Accountability, Ottawa, Canada
• Commonwealth Human Rights Initiative, New Delhi, India
• Federal Accountability Initiative for Reform (FAIR), Ottawa, Canada
• Government Accountability Project, Washington DC, US
• Open Democracy Advice Centre, Cape Town, South Africa
• Project on Government Oversight, Washington DC, US
• Public Concern at Work, London, UK
• Transparency International, Berlin, Germany
• Whistleblowing International Network, (International)
• Whistleblowers Australia, Balmain, Australia
• Whistleblower-Netzwerk, Cologne, Germany

Transparency International case studies

• Transparency International Armenia is a member of a working group on improving government integrity, which drafted a provision on whistleblower protection.
• Transparency International Austria’s Working Group on Whistleblowing has been active for several years and has held numerous public events, including one featuring Olympus whistleblower Michael Woodford. TI Austria has also issued a position paper on whistleblowing.
• Transparency International Canada held a public event on whistleblowing at its Fourth Annual Day of Dialogue “Spotlight on Corruption” on 3 June 2014. TI Canada is pushing for Canada’s national whistleblower law to be improved.
• Transparency International Sweden conducted a study on whistleblowing in 2011–2012 with Stockholm University that included recommendations on stricter legislation and increased protection for whistleblowers. TI-Sweden has a working group on whistleblowing and has published a position paper on whistleblowing.
• Transparency International Switzerland is involved in a wide range of activities including lobbying successfully for whistleblower protection for federal employees in 2011; publishing guidelines for whistleblowers in German and English; convening a “Practitioners’ Circle” for corporate compliance officers; publishing a list of contacts for whistleblowers; and holding regular events on the issue.
• Towards Transparency, TI’s national chapter in Vietnam, submitted proposals that led to the strengthening of the country’s new Denunciation Law.
• Transparency International Zambia has released a position paper on whistleblowing and an analysis of the shortcomings in the country’s whistleblower provisions in relation to the UNCAC.