Whistleblowing - A Comparative Study

This chapter gives a general overview of whistleblowing around the world. Its purpose is to disclose commonalities and differences between several jurisdictions and to give a general idea of what constitutes whistleblowing. The chapter is based on the country reports published in this volume and on a number of additional country reports the essence of which is given account of in the tabula in Part III. This chapter is also an updated version of the general report presented to the International Academy of Comparative Law at the XIXth International Congress of Comparative Law in Vienna.

Canadian law has generally adopted the “up the ladder” approach to whistleblowing in both public and private employment. This chapter addresses whistleblowing protection of employees at common law and civil law as well more recent legislative reforms to protect whistlebowers in relation to discrete matters invoking the principle of protection (such as children, the elderly and the environment).

This paper investigates the legal protection of whistleblowers in the Republic of Croatia. The first part of the paper presents an in-depth analysis of the legal framework (including both international and national sources of law), whereas the second part discusses settled case-law of national courts and of the ECtHRs. In conclusion the authors tackle the specific issue of whistleblowers within the public sector. To this end they analyse the results of a recently conducted study investigating the perception of whistleblowers in the public sector.

The concept of whistleblowing in the legal order and social community of the Republic of Cyprus is mostly influenced by its European dimensions originated from the Council of Europe, the EU and the Council’s Group of the States Against Corruption (GRECO). From a conceptual perspective, in Cyprus there is a considerable protection for internal whistleblowers working mostly in the public sector followed be a weaker protection of whistleblowers of private sector and even weaker protection for external whistleblowers that do not satisfy the employee criterion. The dichotomy of protection between public and private sector seems to be unnecessarily and unjustifiably overlooked. Whistleblowing in Cyprus is mostly connected with bribery and corruption while at the same time the small size, population and closeness of the Cypriot society must be taken into account. From the methodological perspective, there is almost absolute lack of sources in Cyprus regarding whistleblowing. The legal framework lacks a specific legislation offering independent protection to whistleblowers, a choice made by the State as regards the method of compliance with its international and European legal obligations and undertakings. In the case of Cyprus there has been no study or statistics exploring the public or intra-institutional attitude towards whistleblowers.

In the Czech Republic, there is no comprehensive special whistleblowing legislation. If the notification is made within industrial relations, more precisely within private-law relations, then protection of whistleblowers as well as the ones who are notified, provides direct support especially the legislation on protection of personal data and indirectly also the constitutional foundations of the Czech legal order. The Supreme Court of the Czech Republic and the Constitutional Court of the Czech Republic have commented, in the context of the principle of employee loyalty, on a practice which could be described as whistleblowing in the area of employment. The courts have in principle confirmed that even without an explicit legal basis it is possible in the legal order of the Czech Republic to found necessary normative basis for this practice.

Multinational companies implementing the US Sarbanes-Oxley Act of 2002 imported initially whistleblowing systems in France. At first, French public authorities were reluctant to welcome such systems as they recall the occupation time during the Second World War. Today, French law and authorities are less hostile to whistleblowing. In particular, three laws have been passed granting protection for whistleblowers in some specific areas (public health, environment, economic crimes).

French law has not only transposed the American whistleblowing model. Thus, first, the French authorities restricted indoor whistleblowing to a precise list of fields, which the legislator has extended little by little. French law also gave a new basis, which has completely changed the economy of those procedures. Indeed, basing the whistleblowing regulations on freedom of expression of the whistleblower, and not on internal control, opens the door to outdoor whistleblowing. There is no set hierarchy between both procedures. Consequently, the protection of whistleblowers lies in good faith, the non-abusive use of this freedom and the confidentiality of their identity. The restrictions which might be imposed on freedom of expression have to be strictly defined, as every exception to a principle of law. Besides, the French legislator brought an original protection by sanctioning discrimination in some case of whistleblowing. By doing so, the legislator defines different regimes according to the object of whistleblowing, making the applicable law more complex and less understandable. The originality of the French system also and most importantly comes from the protection granted to the accused person. Employers are dissuaded from implementing systems, which might facilitate denunciation. The accused person must also have access to the elements of the whistleblowing, which allows them to prepare their defence. Indeed, the French model is grounded on a sense of mistrust towards whistleblowing, which has brought public authorities to search for a balance between the protection of the whistleblower and the protection of the accused person.

The phenomenon of whistleblowing is not new in German law but has attracted increasing attention in the past few years. The current German law on whistleblowing follows a two-channel-model, i.e. fragmentary legislation on the one side and case law on the other side which is a consequence of the lack of a general regulation on whistleblowing. Traditionally, the labour courts were reluctant to grant comprehensive protection to whistleblowers because they qualify every kind of whistleblowing in principle as a breach of the duty of the employee to loyalty which can constitute a reason for dismissal. However, in the course of time and influenced by decisions of the Federal Constitutional Court and the European Court of Human Rights the attitude of the labour courts towards whistleblowers became more open-minded. Nevertheless, the protection of whistleblowers remains primarily embedded in the terms of termination protection law with its focus on balancing the rights and interests of the parties to the employment contract and so running the risk of losing sight of public policy considerations.

The subject of whistleblowing has become one of very great significance in Irish employment law in recent years, a significance that is now reflected in the Protected Disclosures Act 2014 (hereafter referred to in this Report as the “2014 Act”), which came into force in Ireland in the summer of 2014. This new regime provides comprehensive protection for whistleblowers across all sectors of the economy, replacing what had hitherto been a piecemeal, sector-specific patchwork of protections that left significant lacunae in the legal regime. Accordingly, this Report offers analysis of the new legislative regime in Irish law and its implications for the development of an entirely new whistleblowing regime in this jurisdiction.

For many years, Malta did not have a law which specifically dealt with whistleblowing. No law acknowledged or defended whistleblowers. As in other countries, whistleblowers in Malta have generally faced great difficulties and suffered retaliation for their deeds. A few years ago, whistleblowing was acknowledged in a few provisions in employment law but these were rather incomplete and were not supported by any proper structure. After a number of false starts, the Maltese Parliament finally passed a ‘Protection of Whistleblowers Act’ in 2013. This was the first ever comprehensive law on the subject; but is it good enough and do whistleblowers feel safe now? The writer argues that the law does not protect all disclosures and various onerous conditions have been imposed in the law. A prospective whistleblower should seriously consider his position before reporting wrong-doing or corruption in his work place. This chapter concludes that in Malta, despite the recent 2013 Act, whistleblowing remains a very risky and thankless decision.

While the legal frame work for the protection of whistleblowers has continued to develop at a steady pace to its current above average effectiveness, the Netherlands stand out for their societal dialogue on whistleblowing, the broad consent beyond party line and above all: an independent, state financed Advice Centre for Whistleblowers and in all likelihood a House for Whistleblowers as a new institution with some protective functions and even the power to investigate.

This chapter concerns the legal protection of whistleblowers in Poland. The author analyses the legislation and the case law concerning especially claims for the unfair dismissal and criminal proceedings for the defamation. The aim of this chapter is to present the current state of protection of persons who disclose irregularities in the organizations or companies and to detect the weaknesses of the present Polish legislation in order to recommend legal remedies helping to combat the malpractices with the aid of whistleblowers.

Law may to some extent protect the whistleblower without a specific treatment of whistleblowing – even if that sounds as a paradox – and that is frequently the case in countries where the disciplinary dismissal requires a faulty breach of the employment contract by the employee, particularly if the employee is entitled to reinstatement if the dismissal is unlawful.

In Romania, the labour legislation applicable in private sector does not expressly regulate the protection of whistleblowers. The only normative act in this field is the Law no 571/2004 regarding the protection of the staff of the public authorities, public institutions and other units that notifies breaches of the law. Therefore, the only area where – in consensus between the public opinion and legal regulations – whistleblowing is encouraged is the public sector, where it focuses on denouncing corruption.

The paper aims to analyse the legal provisions in force and their consequences on legal practice, and to propose some steps to take further on in order to ensure wider and more efficient protection of whistleblowers in Romania.

The article discusses the question of protection of employees and civil servants who report corruptive and other illegal and improper conduct of their employers or other persons in the Republic of Slovenia. While they are specifically protected by provisions of the Integrity and Prevention of Corruption Act in case they report corruption, they are only protected by general rules of labour law in case they report other improper conduct, for instance by rules referring to the protection against harassment and mobbing, illegal termination of employment contract and employer’s liability for damages.

Although government efforts to encourage whistleblowers to come forward date back to 1778, the United States has enjoyed a conflicted history with respect to whistleblowers. While some commentators pillory Edward Snowden, some privacy rights advocates praise his actions. Perhaps reflecting these conflicting sentiments, current protections in the U.S. are a patchwork collection of industry-specific legislation. The current slate of legislation is largely the result of the confluence of recurring waves of media publicity exposing government fraud, the growth in government spending and involvement, and Congress’s attempts to respond to adverse publicity concerning government fraud. The succession of public crises running from Watergate to the wasteful spending in the Iraq War, to the collapse of the financial and securities industries have demonstrated that the government needs whistleblowers to help expose fraud and waste. As successive legislative attempts to extend whistleblower protections have demonstrated, reform “is usually precipitated by some crisis or new political movement that disrupts the preexisting status quo.”