Whistleblowing
Insofar as corporate capture is concerned, whistleblowers can play a critical role in revealing evidence of State capture, as seen in the leaks from South Africa that enabled the Public Protector to write her original report, “State of Capture,” about the Gupta-Zuma scandal.
A whistleblower is “a person who exposes information that he or she reasonably believes, at the time of disclosure, to be true and to constitute a threat or harm to a specified public interest, such as a violation of national or international law, abuse of authority, waste, fraud, or harm to the environment, public health or public safety.” This person can be an insider— such as a worker or manager of a company, or a public official of the State — or an outsider— such as community stakeholders, journalists, commercial partners, etc. Indiscriminately,the same rights and protections should be afforded to anyone who blows the whistle and meets this definition.
According to Masaki Iwasaki, “In order for companies to formulate appropriate human rights policies and conduct human rights due diligence, it is necessary for them to accurately identify whether human rights are being violated as a result of their business activities. Companies may conduct top-down internal investigations or audits for this purpose. However, investigators do not always have enough information to discover abuses, and organizational concealment of violations at the departmental level may cause investigators to miss relevant facts. Therefore, a bottom-up approach to human rights due diligence is essential as a supplement to the work of investigators; i.e., an approach in which the facts of human rights violations are detected as a result of whistleblowing by such third parties as the victims of human rights abuses or people who have witnessed the abuses.”
What follows are examples of opportunities, strategies, and innovations from different countries that can be adapted and scaled to other sectors and geographies:
- Leaking platforms in Latin America:In 2014, as part of an alliance with several media and civil society organizations in Mexico, the Project on Organizing, Development, Education, and Research (PODER) co-founded Méxicoleaks, the first anonymous and secure leaking platform in Latin America. Subsequently, PODER co-founded or contributed to the emergence of five similar platforms throughout Central and South America. In the aggregate, these platforms have received thousands of leaks over the past eight years, leading to hundreds of new articles, many of which were generated by corporate insiders blowing the whistle on corruption or corporate-sponsored human rights violations. The key component to these platforms is secure technology that guarantees a source’s anonymity.
- Platform to Protect Whistle-blowers in Africa (PPLAAF):The Plateforme de protection des lanceurs d’alerte en Afrique is a Senegalese NGO founded in 2017 by lawyers, anti-corruption activists, and investigative journalists to support leaking and whistleblowers through legal strategies, funding, research, legislation, and technology.“When PPLAAF agrees to accompany a whistleblower in the disclosure of his or her information, it will analyze with the whistleblower the best course of action: either to inform his or her superiors, to give the information to competent authorities which are eager to prosecute, or to reveal the information to the public. (…) At each stage of disclosure, PPLAAF accompanies the whistleblower and, when necessary – in particular, when the whistleblower’s information is relevant for certain authorities – PPLAAF hires a lawyer to represent the whistleblower. (…) In the event of a public disclosure, and to best protect the whistleblower, PPLAAF may undertake to release the information directly after a thorough investigation. PPLAAF and the whistleblower may also decide to work with investigative media which will take responsibility for the publication. PPLAAF negotiates with journalists for the right to review passages that refer to the source of the information, which may provide identifying information about the whistleblower, to ensure that the identity of the whistleblower is not compromised if he or she wishes to remain anonymous.”
- Corporate whistleblower protections in Australia:“The reforms included in the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 are world leading in two respects, and set a new benchmark for whistleblower protection. First, legal protections now apply before a whistleblower starts to experience reprisals. Typically, action to protect whistleblowers is only taken after retribution has started. By the time compensation rights are triggered, the protections they offer are usually too little, too late. Now, all public and large proprietary companies are required to spell out how they will ‘support and protect’ those who speak up before they begin to experience any detrimental effects. This culture-changing step is crucial. Many companies are good at getting their employees to reveal wrongdoing. Their problem is knowing how to actually protect them when they do. Second, and backing this up, a company can now be held liable if it fails to prevent detrimental acts — by having no support plans in place, or neglecting to implement them, for example. Granting whistleblowers the right to sue for such a failure is a world first. The new rules for whistleblowing outside the company also set a new benchmark. Whistleblowers are protected if they choose to go to certain prescribed bodies rather than through internal company channels. And if they blow the whistle to a regulator and nothing happens within 90 days, or if there are emergency circumstances, it is now relatively simple for them to go public and still be protected.”
- Recommendations from the South African experience:“The South African legal system offers protection to whistle-blowers through various pieces of legislation. The Protected Disclosures Act (Act No 26 of 2000) was developed specifically to protect employees who blow the whistle on malfeasance at their workplaces. However, commentators have criticised the act’s use of restrictive definitions to regulate who and what is protected. The definition of whistle-blower applies only to employee and employer relationships, providing no protection to third parties, who as a result may be discouraged from making disclosures. Once a whistle-blower protected by the act comes forward, any professional consequences or retaliation they experience are considered an offence. Consequently, the act imposes a number of obligations on employers to which protected disclosures are made, chief among which is requiring them to take all possible steps to protect whistle-blowers from retribution, victimisation or retaliation. These may include protecting the whistle-blower’s confidentiality or transferring them – with their consent – to other areas of the organisation. Moreover, employers are also required to implement and authorise appropriate internal procedures for receiving and dealing with information from whistle-blowers, and to ensure that these procedures are brought to the attention of all employees. Should an employee who has made a protected disclosure feel that their employer has not met these and other obligations, the act provides a number of remedies, including approaching either the Labour Court or the Commission for Conciliation, Mediation and Arbitration. The act makes provision for whistle-blowers who face occupational detriment to apply for the payment of compensation, the payment of actual damages suffered, and the remedy of occupational detriment suffered due to a protected disclosure. Conversely, should a whistle-blower not seek the payment of damages, they are also entitled to request and obtain a transfer on terms and conditions no less favourable than the conditions that applied immediately before the transfer. These provisions are reinforced by Section 159 of the Protection for Whistle-blowers Act, which provides whistle-blowers with both civil and criminal immunity for any disclosures they may make. Additionally, whistle-blowers can rely on the Witness Protection Act of 1998, which makes the disclosure of a whistle-blower’s identity an offence. Nonetheless, a number of organisations have petitioned the South African government to reform whistle-blower protections, including legislation that would broaden the definition of a whistle-blower and provide specialised courts for whistleblowing cases.”
- Recommendations from the Malaysian experience:“[Establishing and implementing whistleblower protection] can only be achieved through the implementation of effective protection mechanisms not only before disclosure of pertinent information related to the illegal act in question but also during and after the disclosure. Additionally, appropriate measures ought to be taken to ensure that the bodies tasked with protecting whistleblowers are able to carry out their duties independently and without fear or favour. Whistleblower protection is integral to fostering transparency, promoting integrity, and detecting corruption, misconduct, and fraud both in the private and public sector. An effective whistleblower protection system supports and encourages businesses, individuals within an organisation, and members of the public to expose corrupt practices. This is fundamental to combating impunity that continues to allow corruption to fester. (…) The United Nations Convention against Corruption (UNCAC), to which Malaysia is party, requires all its signatory countries to put in place legal mechanisms meant to protect people who bring to light corruption and other related wrong-doing from retaliation. In affirming the importance of putting in place a comprehensive whistleblower protection system, Articles 13(2) and 33 of the UNCAC state: Article 13(2). Participation of society. Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies, where appropriate, for the reporting, including anonymously, of any incidents that may be considered to constitute an offence established in accordance with this Convention. Article 33. Protection of reporting persons. 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 offenses established in accordance with this Convention.”