AN INTERNATIONAL
PERSPECTIVE ON
WHISTLEBLOWING
BY NORM KEITH, SHANE TODD, AND CARLA OLIVER
t
he international landscape of whistleblowing is changing
dramatically and quickly. The Supreme Court of Canada
was the first national high court in the world to recognize
and protect the role of whistleblowers, their identity, and
immunity from disclosure and criminal prosecution. In its
decision involving the World Bank Group, the Court addressed
the subject of whistleblower immunity in an international
case. The opening paragraph of the Supreme Court judgment,
delivered by Justices Moldaver and Côté, reads as:
Corruption is a significant obstacle to international
development. It undermines confidence in public
institutions, diverts funds from those who are in great
need of financial support, and violates business integrity.
Corruption often transcends borders. In order to tackle
this global problem, worldwide cooperation is needed.
When international financial organizations, such as
the appellant World Bank Group, share information
gathered from informants across the world with the
law enforcement agencies of member states, they help
achieve what neither could do on their own.
(World Bank Grp. v. Wallace, 2016 SCC 15, para. 1 (Can.).)
The Court confirmed that the World Bank Group did
not waive their immunities by voluntarily providing that
information to Canadian law enforcement officials. This
included two confidential tipsters who told the World Bank
Group’s investigative unit that SNC-Lavalin Inc. was in the
process of bribing Bangladeshi officials to grant the Canadian
engineering firm a contract to supervise the Padma Bridge
project in Bangladesh.
The Court held that the International Bank for
Reconstruction and Development and the International
Development Association, two of the five institutions that make
up the World Bank Group, are protected by the immunities
in their constituent treaty, which Canada implemented in
the federal Bretton Woods and Related Agreements Act. These
14
immunities generally insulate members of the World Bank
Group from being compelled by domestic court orders to
produce their officials and documents, as part of disclosure
in criminal prosecutions.
Criminal defense lawyers may be concerned regarding the
international organization’s immunity from domestic criminal
disclosure obligations. The right to full disclosure of all the
evidence associated with the investigation is an important legal
right of an accused. The fundamental debate between immunity
of whistleblowers and the right to make full answer and defense
is alive in many jurisdictions around the world.
This article reviews the American, Canadian, European, and
international legislative and enforcement perspectives on the
role of whistleblowing and antibribery and corruption initiatives
around the world.
CRIMINAL JUSTICE n Fall 2016
Published in Criminal Justice, Volume 31, Number 3, ©2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied
or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
UNITED STATES
Whistleblower protection laws in the United States date back
over 150 years. Today, these laws can be found in a range
of legislation in the private and public sectors. Since the
enactment of the False Claims Act (FCA) in 1863 (31 U.S.C.
§§ 3729 et seq.), the United States has been a leading proponent
of qui tam legislation. The qui tam rights contained in the FCA
permit private citizens to sue government contractors on behalf
of the United States government and recover a portion of the
proceeds. (D aniel K im , T ransparency I nt ’ l C an ., R eport
on W histleblower P rotections in C anada 13–14 (2015)
[hereinafter TI-Can. Report], available at http://tinyurl.com/
j9nwj23.) Since it was amended in 1986, the FCA has led to
the recovery of more than $48 billion. (U.S. Dep’t of Justice,
Fraud Statistics—Overview (Nov. 23, 2015), http://tinyurl.
com/zya84bv.)
Since the 1970s, whistleblower protection laws for
federal and private-sector employees have been significantly
expanded in the United States. Examples include the 1978
Civil Service Reform Act, the 1989 Whistleblower Protection
Act, and over 18 other industry-specific federal statutes,
such as the 1987 Department of Defense Authorization Act
and the 2010 FDA Food Safety Modernization Act. (Jon O.
Shimabukuro & L. Paige Whitaker, Cong. Research Serv.,
R42727, Whistleblower Protections under Federal Law:
An Overview (2012).)
At the outset of the twenty-first century, corporate scandals
involving companies such as Enron, as well as the 2008
financial crisis, led the United States to undertake a major
overhaul of its financial regulatory legislation in an effort
to restore investor confidence in U.S. financial markets and
improve corporate responsibility.
On July 30, 2002, President George W. Bush signed
into law the Sarbanes-Oxley Act (SOX). SOX consists of a
comprehensive set of rules and regulations for tackling corporate
fraud, and important whistleblower provisions to protect
employees of publicly traded companies who disclose corporate
fraud. Section 806 of SOX creates a civil cause of action for
employees who have been subject to retaliation for corporate
whistleblowing. Publicly traded companies may not “discharge,
demote, suspend, threaten, harass, or in any other manner
discriminate against an employee in the terms and conditions
of employment” as a result of protected whistleblower activity.
(18 U.S.C. § 1514A(a).) The antiretaliation provisions of SOX
also protect corporate whistleblowers by empowering courts
and administrative agencies to award whistleblowers monetary
and nonmonetary remedies. These include reinstatement if the
whistleblower has been fired or demoted, monetary damages
for loss of pay, damages for emotional distress, and legal
NORM KEITH is a senior partner, SHANE TODD
is an associate, and CARLA OLIVER is a consultant
with Fasken Martineau, an international business
and litigation firm in Toronto, Canada. The authors
gratefully acknowledge the assistance of summer
student Harry Skinner.
fees. (Id. § 1514A(c).) Section 1107 of SOX also provides
for criminal sanctions. (Id. § 1513(e).) A wrongdoer is guilty
of a felony if he or she knowingly retaliates against or takes
harmful action against a person, including interfering with the
person’s employment, for disclosing truthful information to
a law enforcement official about a possible federal offense.
On July 21, 2010, President Obama signed into law the
Dodd-Frank Wall Street Reform and Consumer Protection Act
(Dodd-Frank Act). (Pub. L. No. 111-203, § 922(a), 124 Stat.
1376, 1841 (2010).) The Dodd-Frank Act initiated a massive
overhaul of the U.S. financial sector and introduced a range
of new and improved whistleblower protection laws.
Importantly, the Dodd-Frank Act amended the 1934
Securities and Exchange Act by adding section 21F, entitled
“Securities Whistleblower Incentives and Protection.” (U.S.
S ec . & E xch . C omm ’ n , 2015 A nnual R eport to C ongress
Since the 1970s,
whistleblower protection
laws for federal
and private-sector
employees have been
significantly expanded in
the United States.
D odd -F rank W histleblower P rogram 4 (2015)
[hereinafter SEC Report ], available at http://tinyurl.com/
p3k5gdj.) Section 21F allows the SEC to make monetary
awards to individuals who voluntarily provide original
information that leads to successful enforcement actions
resulting in monetary sanctions over $1 million. To administer
the whistleblower program, the Dodd-Frank Act established
the Office of the Whistleblower (OWB)—a separate office of
the SEC’s Division of Enforcement. (Id.) Section 924(d) of
the Dodd-Frank Act requires the OWB to report to Congress
about its activities on an annual basis. (Id.)
Whistleblower awards can be up to 30 percent of the
recovered proceeds in America. The SEC may increase or
decrease a financial award depending on the circumstances.
Awards may be increased depending on the nature and
significance of the information to the enforcement activity,
the assistance provided by the whistleblower, whether and
the extent to which the individual participated in internal
compliance systems, and whether the making of an award in
the circumstances would further law enforcement’s interest in
an effective whistleblowing program. (17 C.F.R. § 240.21F-6.)
The SEC may decrease a financial award if the whistleblower
was culpable or involved in the securities violation. In
considering whether to decrease an award, the SEC considers
the whistleblower’s role, education, training, experience and
on the
CRIMINAL JUSTICE n Fall 2016 Published in Criminal Justice, Volume 31, Number 3, ©2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied
or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
15
responsibility, knowledge of wrongdoing, financial benefit,
prior record (if any), egregiousness of conduct, and whether
he or she knowingly interfered with an SEC investigation. (Id.)
Since 2011, the SEC has paid out more than $67 million
to 29 whistleblowers, and by the end of fiscal year 2015
had received 14,116 tips. (SEC Report, supra, at 21; Press
Release 2016-91, SEC, SEC Awards More Than $5 Million to
Whistleblower (May 17, 2016), http://tinyurl.com/h9dqq62.)
The largest SEC awards to date are $30 million and $14 million.
(Press Release 2014-206, SEC, SEC Announces Largest-Ever
Whistleblower Award (Sept. 22, 2014), http://tinyurl.com/
zw6f66o; Press Release 2013-209, SEC, SEC Awards More
Than $14 Million to Whistleblower (Oct. 1, 2013), http://
tinyurl.com/zajbwnq.) Two recent large awards include a
$3.5 million award on May 13, 2016, to a whistleblower
who provided information during an ongoing investigation
that strengthened the SEC’s case, and a $5 million award on
May 17, 2016, to a former company insider whose detailed tip
led the SEC to uncover securities violations. (Whistleblower
Award Proceeding, Exchange Act Release No. 77833 (May 13,
2016); Press Release 2016-91, supra.)
In addition to creating a monetary incentive program,
the Dodd-Frank Act explicitly prohibits reprisal against
whistleblowers who report corporate wrongdoing, particularly
in regard to securities violations. The Dodd-Frank Act also
expanded the antiretaliation provisions of SOX to apply to
employees of subsidiaries of publicly traded companies, in
addition to employees of publicly traded companies. The
Dodd-Frank Act also doubled the statutory filing period for
SOX retaliation complaints from 90 to 180 days and gave
parties the right to a jury trial in district court actions. Finally,
the Dodd-Frank Act created a new cause of action allowing
whistleblowers to sue in federal court if their employers
retaliated against them for disclosing information about their
employer to the SEC.
CANADA
There is less comprehensive whistleblowing legislation in
Canada compared to the United States.
Federal whistleblower laws in Canada. Section 425.1
of the Canadian Criminal Code (R.S.C. 1985, c. C-46) offers
protection to employee whistleblowers in all jurisdictions
in the private and public sectors. Section 425.1 makes it
a criminal offense for an employer or person acting on its
behalf to engage in or threaten a reprisal against an employee
with the intent of keeping the employee from providing
information about an offense under federal or provincial
legislation to a person whose duties include the enforcement
of that law. Section 425.1 only applies to criminal or quasicriminal misconduct, and employees are only protected if they
approach a law enforcement official. There is no protection if
employees contact any other person or organization. Section
425.1 is a hybrid offense. This means the Crown may prosecute
summarily or by indictment. The latter is roughly equivalent to
a felony offense in the United States, and convicted individuals
are liable for larger fines (unlimited for corporations) or terms
of imprisonment up to five years.
Federal public sector employees. Since April 2007, the
16
Public Servants Disclosure Protection Act (PSDPA) (S.C.
2005, c. 46) has provided protection to whistleblowers in
the federal public sector. The purpose of the PSDPA is to
encourage public servants to disclose wrongdoings and protect
them from reprisal. In comparison to section 425.1 of the
Criminal Code, the scope of wrongdoing that may be disclosed,
as well as the individuals to whom the employee may make the
disclosure, is broader under the PSDPA. The PSDPA provides
that wrongdoings in or relating to the public sector include a
contravention of any act of parliament or of the legislature of
a province, misuse of public funds or a public asset, and gross
mismanagement in the public sector. Such wrongdoings may
be disclosed to the Public Sector Integrity Commissioner, as
well as a supervisor in the organization. (Id. at secs. 8, 12–13.)
Section 19 of the PSDPA provides that “[n]o person shall
take any reprisal against a public servant or direct that one
be taken against a public servant.” Sections 19.1(1) and (2)
provide that where a public servant or former public servant
believes, on reasonable grounds, that a reprisal has been taken
against him or her, the public servant may file a complaint
within 60 days with the Office of the Public Sector Integrity
Commissioner, a new agency created under the PSDPA. The
commissioner reviews all complaints and may investigate if
there are grounds to believe a reprisal has been taken. After
investigating, the commissioner may refer a reprisal complaint
to the Public Servants Disclosure Protection Tribunal, a quasijudicial body that adjudicates reprisal complaints. The tribunal
has the power to order remedies for the complainant and to
make orders against a person who has engaged in a reprisal. In
addition to any other applicable legal penalty, a public servant
who has engaged in a reprisal may be subject to disciplinary
action up to termination of employment as determined by the
tribunal. (Id. at sec. 9.)
The PSDPA, the commissioner, and the tribunal have
been the subject of criticism. Critics note that perpetrators
can escape punishment under the PSDPA regime by pursuing
employment in the private sector. Compounding this issue is
the fact that the commissioner does not disclose the identities
of wrongdoers, which means that prospective employers do not
become aware of prior misconduct. (TI-Can. Report, supra,
at 10.) In addition, over a seven-year period, only six out of
140 reprisal cases were referred by the commissioner to the
tribunal. Of these six cases, the commissioner declined to ask
the tribunal for disciplinary actions against the employers
despite identifying specific acts of reprisal. As well, during
Christiane Ouimet’s three-year tenure as commissioner from
2007 to 2010, no wrongdoing or reprisals were found among
the more than 200 complaints filed. (Id. at 11.)
Provincial and territorial public sector employees. Six of
Canada’s 10 provinces have public sector whistleblower legislation:
• Ontario: Public Service of Ontario Act (S.O. 2006, c.
35, sched. A);
• Manitoba: Public Interest Disclosure (Whistleblower
Protection) Act (C.C.S.M. c. P217);
• Nova Scotia: Public Interest Disclosure of Wrongdoing
Act (S.N.S. 2010, c. 42);
• Saskatchewan: Public Interest Disclosure Act (S.S. 2011,
c. P-38.1);
CRIMINAL JUSTICE n Fall 2016
Published in Criminal Justice, Volume 31, Number 3, ©2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied
or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
• New Brunswick: Public Interest Disclosure Act (S.N.B.
2012, c. 112); and
• Alberta: Public Interest Disclosure (Whistleblower
Protection) Act (S.A. 2012, c. P-39.5).
The remaining four provinces and three territories have
no whistleblower legislation for provincial public servants.
Provincial private sector employees. In most provinces,
there are currently no freestanding whistleblower laws
applicable to the private sector, and no legal obligation to
report wrongdoing. Almost all provinces have employment
standards and health and safety legislation that prohibit
private sector employers from engaging in reprisals, but those
protections apply only to employees who, among other things,
seek enforcement of or file complaints under those pieces of
legislation. The antireprisal provisions in the New Brunswick
Employment Standards Act (S.N.B. 1982, c. E-7.2) and the
Saskatchewan Employment Act (S.S. 2013, c. S-15.1) are
not limited to enforcement under those pieces of legislation.
They extend antireprisal protection to employees who provide
information to authorities about violations of other pieces of
provincial and federal legislation.
OSC whistleblower program. On October 28, 2015,
the Ontario Securities Commission (OSC)—the securities
regulator of Canada’s largest and most populous province—
published OSC Policy 15-601: Whistleblower Program for
public comment. The program is intended to encourage
reporting of securities misconduct by, among other things,
providing that individuals who submit information about
securities violations may be eligible for a financial award.
The program contains a draft procedure for individuals
to submit information confidentially to the OSC. Once
information is submitted, the OSC may request additional
information, but whistleblowers are generally not expected
to obtain other documents or information that is not already
in their possession. OSC staff will take reasonable efforts
to protect the identity of whistleblowers, and the OSC plans
to recommend specific legislative amendments to provide
reprisal protections to employees who report a securities
violation. The OSC does not grant immunity from prosecution;
however, if a whistleblower reports a violation of law in which
he or she is complicit, the OSC has discretion to elect not
to prosecute.
In order to qualify for a financial award, information
must be original, high quality, and contain timely specific
and credible facts pertaining to serious securities violations
that would render meaningful assistance to investigators in
obtaining the imposition of monetary sanctions or voluntary
payments of $1 million or more. Further, the appeal
period in relation to the sanctions must have expired
or any appeal must have been concluded. If there is such
an outcome, the OSC may pay an eligible whistleblower an
award of between 5 percent and 15 percent of the sanctions
or payments made. The maximum award is $1.5 million if
the total sanctions are $10 million or more, unless the OSC
collects $10 million or more, in which case the whistleblower
may receive an award of between 5 percent and 15 percent of
the monetary sanctions and/or voluntary payments collected
up to a maximum of $5 million.
The OSC officially launched its Whistleblower Program on
July 14, 2016 (see http://tinyurl.com/gn3h89v).
EUROPE
Over the past 20 years, whistleblower protection legislation
has been slowly gaining momentum within the European Union
(EU). (See Mark Worth, Transparency Int’l, Whistleblowing
in E urope : L egal P rotections for W histleblowers in the
EU (2013) [hereinafter TI-EU R eport], http://tinyurl.com/
zpvgct8.)
In October 2013, the European Parliament called upon the
European Commission (EC) to submit a legislative proposal to
establish an EU-wide whistleblower protection program in the
private and public sectors. (Id. at 22–23.) Shortly afterward,
however, the EC rejected this request. Consequently, the
implementation of whistleblower legislation has been left to
the discretion of the individual EU member states.
According to Transparency International, a nongovernmental
organization (NGO) tasked by the EC to undertake an in-depth
review of EU member state whistleblower legislation, only
four EU member states had “advanced” whistleblower legal
frameworks as of October 2013: Luxembourg, Romania,
Slovenia, and the United Kingdom (U.K.). Of the other 23
EU countries, 16 have partial legal protections for employees,
while the remaining seven have either very limited or no legal
frameworks. (Id. at 5.)
United Kingdom. The United Kingdom enacted the EU’s
first comprehensive whistleblower legislation in 1998, the
Public Interest Disclosure Act (PIDA). PIDA covers nearly
all employees in the public, private, and nonprofit sectors, as
well as contractors, trainees, and U.K. workers based overseas.
(Id. at 10.)
PIDA gives workers and employees the right to bring a
claim in the employment tribunal for compensation if they
suffer reprisal. (Pub. Concern at Work, Is the Law Protecting
W histleblowers ? A R eview of PIDA C laims 6 (2015)
[hereinafter PCaW Report], available at http://tinyurl.com/
za3sbne.) PIDA also provides an “after the event” remedy for
victimized whistleblowers rather than only preventing such
victimization from taking place. PIDA protection applies
from the outset of employment, which means there is no
requirement that the employee work for a qualifying period,
as with ordinary unfair dismissal claims. PIDA is based on
a “tiered” system of disclosure where whistleblowers can
disclose information to their employer, regulatory agencies,
external individuals such as members of Parliament, or directly
to the media. Accuracy standards increase with each tier,
meaning whistleblower reports must be more accurate if they
are reported externally in order for the whistleblower to be
legally protected. (TI-EU Report, supra, at 83.)
Under PIDA, employers must prove that any action taken
against an employee or worker was not motivated by the fact
that an employee was a whistleblower. In addition to financial
losses, employees can also claim compensation for aggravated
damages and injury to their feelings. One such award reached
£5 million. (Id.)
In April 2013, PIDA was amended by the Enterprise and
Regulatory Reform Act, which replaced the requirement that
CRIMINAL JUSTICE n Fall 2016 Published in Criminal Justice, Volume 31, Number 3, ©2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied
or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
17
disclosures be made in good faith with a new “public interest
test.” After June 25, 2013, a disclosure will only count as
a “qualifying disclosure” if the whistleblower reasonably
believes that the disclosure is “made in the public interest”
and fits into one of the categories set out in the legislation:
criminal offense, breach of a legal obligation, or miscarriage
of justice. Motive remains relevant as compensation can be
reduced by up to 25 percent if the disclosure was made in bad
faith. (PC a W Report, supra, at 6–7.)
Other EU member states. Shortly after the enactment
of PIDA, a number of EU countries enacted their own
whistleblower laws. (TI-EU Report, supra, at 10–12.)
In 2001, the Netherlands approved protections for public
servants. In 2006, it established a public sector ethics and
integrity agency, and later expanded its National Ombudsman’s
Office in 2011. (Id. at 66.)
In 2002, Malta enacted whistleblower regulations for
certain employees, and in 2009, prohibited reprisal against
whistleblowing public officials. (Id. at 63.)
In 2004, Romania became the first continental EU country
to enact a law dedicated to protecting whistleblowers
from reprisal, the Whistleblower Protection Act. The act
covers government employees and gives equal disclosure
protection to journalists, activists, and other parties outside
the workplace. (Id. at 73.)
In 2010, Hungary became the only other EU member
state with a standalone law covering the public and private
sectors. The Protection of Fair Procedures Act, however, did
not create a government body where whistleblowers can make
disclosures and reprisal complaints. (Id. at 51.)
In 2010, Slovenia also passed an anticorruption law,
which included legal protections for public and private sector
employees. While not dedicated whistleblower legislation,
the legislation contains many internationally recognized
best practices, such as confidentiality, internal and external
disclosure channels, a broad range of remedies, fines for
retaliators, assistance from the Commission for the Prevention
of Corruption, and the burden on employers to prove that
adverse personnel actions were justified. (Id. at 77.)
In 2010, Ireland put in place the 2010 Prevention of
Corruption (Amendment) Act and the 2011 Criminal Justice
Act for whistleblowers reporting corruption and related
offenses. (Id. at 11; see also id. at 53.)
In 2011, Luxembourg passed an anticorruption law that
includes legal protections for public and private sector
employees reporting wrongdoing. The legislation is similar
to the United Kingdom’s PIDA as it places the burden of
proof on employers, and employees may file appeals to a
labor court. (Id. at 61.)
In 2012, Austria established legal protections for
government employees and measures to discipline those who
commit reprisals against whistleblowers. (Id. at 24.)
In 2012, Italy adopted its first provision to protect public
sector whistleblowers, which covers government employees
who report illicit activities, if they do not commit libel or
defamation. (Id. at 55.)
In 2013, France passed a law to protect whistleblowers
who expose health and environmental risks. (Id. at 44–45.)
18
Also in 2013, Belgium passed a whistleblower law at the
federal level. (Id. at 27.)
Although Sweden does not have dedicated whistleblower
legislation, everyone, including employees, may disclose
information to the media. Corporate whistleblowers can report
wrongdoing to outsiders if they first alert their employers, and
can only be fired for just cause. The government is prevented
from attempting to learn the identity of anonymous sources.
(Id. at 81.)
Some EU member states have made less progress toward
establishing whistleblower legislation. Denmark, for example,
is the only Nordic country with no whistleblower regulations
of any kind and no dedicated agency to protect whistleblowers.
(Id. at 37.) In Portugal, whistleblowers have no real protection
and can be criminally prosecuted or be sued civilly for
defaming others, particularly those in positions of power.
The protections created in 2008 for public sector officials
have been viewed as weak, a mere response to international
pressure. (Id. at 71.)
ASIA
Asia—the world’s largest continent by area and population
and home to some of the world’s most diverse cultures—is
also home to a wide spectrum of whistleblower laws. The
Russian Federation, for example, has no dedicated legislation
for the protection of whistleblowers. However, some legal
protections exist under constitutional, criminal, and federal
law for victims and witnesses of wrongdoing.
Similarly, China has no comprehensive and dedicated
legislation for the protection of whistleblowers. However, some
regulators have issued guidelines that require the establishment
of whistleblowing systems by companies. In addition, it may
constitute an offense for certain public officials or civil servants
to engage in a reprisal against a whistleblower.
Certain listed companies in India are required by law to
establish a “vigil mechanism” to allow employees and directors
to report issues. (The Companies Act, No. 18 of 2013, India
C ode (2013), vol. 27.) The vigil mechanism must contain
adequate safeguards to protect employees and directors. The
details of the mechanism must be published on the company’s
website, if any, or in the board’s report. In addition, India
recently passed legislation to establish a mechanism to receive
complaints about corruption, misuse of power, or misuse of
discretion by public servants, and to protect individuals who
use that mechanism. (The Whistleblowers Protection Act, 2011,
No. 17 of 2014 (India).)
South Korea also has protection for whistleblowing related to
the public sector. Legislation has long established a whistleblowing
program that provides for anonymous reporting of corrupt acts by
public officials. (Anti-Corruption and Civil Rights Commission
Act, Act No. 8878, Feb. 29, 2008 (S. Kor.).) The system also
protects whistleblowers from reprisal and provides for financial
incentives in certain circumstances. In contrast, Japan has a
comprehensive and dedicated piece of legislation that protects
employees from dismissal or being subject to a “detriment” (e.g.,
demotion, salary reduction, etc.) for whistleblowing, but there
are no financial incentives for whistleblowers. (Whistleblower
Protection Act, Law No. 122 of 2004 (Japan).)
CRIMINAL JUSTICE n Fall 2016
Published in Criminal Justice, Volume 31, Number 3, ©2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied
or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
AUSTRALIA
All Australian states have whistleblower protection laws
in the public sector. At the federal level, in January 2014,
Australia enacted the Public Interest Disclosure Act 2013
(PID). The PID aims to facilitate disclosure of wrongdoing
in the public sector and to protect whistleblowers from reprisal.
Public sector whistleblowers are guaranteed anonymity and
immunity from liability and disciplinary action. In 2004, the
Corporations Act 2001 was amended (sections 1317AA to
1317AE) to provide immunity and antireprisal protections for
certain individuals who reported violations of the act.
While the Australian whistleblower regime does not
currently provide monetary compensation for whistleblowers,
there appears to be high-level support for the creation of
such awards. Recently, on March 4, 2016, Greg Tanzer,
the Australian Securities and Investments Commissioner,
stated that whistleblowers should be entitled to some form
of monetary compensation or damages, along the lines of
the current bounty system in the United States. (Victoria
Thieberger, ASIC Calls for Compensation for Whistleblowers,
A ustralian B us . R ev . (Mar. 4, 2016), http://tinyurl.com/
zgxz6e3.)
BEST PRACTICES FOR ESTABLISHING AND
MANAGING WHISTLEBLOWING SYSTEMS
Organizations, public and private, have an interest in
encouraging early and internal reporting of wrongdoing
through a whistleblower system. This allows organizations
to investigate alleged wrongdoing, take appropriate corrective
action in cases of proven wrongdoing, and implement
strategies to control the legal, reputational risks. A clear,
effective internal whistleblowing system is essential for
early and internal reporting. The following best practices
may assist in this regard:
• Establish a clear and concise code of conduct.
The code of conduct should apply to all employees,
agents, and representatives of the organization; ensure
knowledge and agreement through document training
and verification initiatives.
• Make compliance and internal reporting a priority.
The senior levels of any organization should explicitly
and publicly support compliance and internal reporting
procedures. A policy statement, signed by senior
officers, outlining the organization’s commitment to
internal procedures is a simple step that can go far to
creating a compliance culture that encourages early and
internal whistleblowing.
• Implement a simple and independent reporting
processes. Whistleblowing procedures should be clear,
user friendly, and independent from the business line.
Confusing procedures discourage whistleblowers.
Whistleblowers may also be discouraged if the reporting
mechanism is not perceived to be independent.
• Prescribe the scope of reportable conduct.
Organizations may choose to limit the subject matter of
reports to those required by applicable law, or they may
choose to allow reports about a wider scope of matters.
The latter may require a larger and better resourced
•
•
•
•
•
•
•
•
whistleblowing structure but can help organizations to
identify and manage a broader range of risks.
Determine the appropriateness of anonymity.
Anonymous reporting can encourage whistleblowing,
but it may also make it more difficult to investigate,
particularly if the original complaint does not contain
much information. Requiring a whistleblower to
identify himself or herself can give the organization an
opportunity to follow up for more information. Note
that certain jurisdictions require organizations to allow
anonymous reporting.
Communicate whistleblowing procedures. Organizations
should train employees on the whistleblowing procedures.
Third parties, who are eligible to make reports, should also
be made aware of the whistleblowing procedures.
Incentivize reporting. While internal reporting is
preferable, in some jurisdictions, organizations must
compete with external regulators that offer financial
incentives to whistleblowers. While organizations may
not be able to match those incentives, consider offering
incentives to facilitate internal compliance. For example,
bonuses may be larger for those managers who create a
culture that facilitates internal compliance.
Explicitly prohibit reprisal and enforce antireprisal
protections. Applicable law may prohibit reprisals
against whistleblowers, but whistleblowers may be
unaware of those protections and, as a result, may be
reluctant to make a report. An explicit statement that
reprisals are prohibited can encourage reporting, but
it will only be effective if antireprisal protections are
consistently enforced by the organization.
Accept, screen, investigate, and act on credible reports.
All whistleblowing reports should be accepted. Reports
should be screened to eliminate those that are frivolous
and vexatious or outside the scope of the whistleblowing
procedures. Screening can also ensure that there is sufficient
credible information to investigate. Credible reports should
be promptly and fully investigated by qualified individuals,
and appropriate corrective action should be taken, if and
as necessary.
Maintain confidentiality and security. Organizations
should implement safeguards to ensure the security and
confidentiality of reports and to prohibit disclosure except in
accordance with the whistleblowing system and as required
by applicable law.
Monitor and audit the whistleblowing system. Regular
internal monitoring and an independent audit of the
system and a selection of closed whistleblowing cases
are crucial to ensuring that the procedure is operating
effectively. Where deficiencies are noted, corrective
action should be promptly taken.
Consider the role of attorney-client privilege. Subject
to applicable law, in some cases it may be appropriate
for an investigation to be conducted under attorneyclient privilege. In such cases, the organization’s
external lawyers may direct an investigation for the purposes
of providing legal advice to the organization. The investigation
and disclosure of the report must be carefully and closely
CONT INU ED ON PA GE 3 6
CRIMINAL JUSTICE n Fall 2016 Published in Criminal Justice, Volume 31, Number 3, ©2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied
or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
19
consistent with the . . . rationale of protecting the attorney’s labor
from discovery.” (Id. at 186.)
Assume that a defendant in a federal criminal case has proceeded
pro se and been convicted and sentenced. Federal prosecutors secure
a search warrant to seize the paper and computer files of that same
defendant from his office, albeit in an apparently unrelated new federal
investigation. The search results in the seizure of, among other items,
the files of information and ideas prepared by that pro se defendant
for use in the now concluded federal prosecution that is the subject
of a pending appeal. The federal prosecutors are informed that the
seized materials contain information prepared as part of the defense at
the prior trial and are protected from disclosure by the work product
privilege. The federal prosecutor refuses to submit the materials to
a taint team, insisting that there is no work product privilege for a
pro se defendant.
Now assume that the defendant obtains a new trial on appeal. The
federal prosecutors would have all of the work product generated by
the pro se defendant in connection with the first trial that was not
disclosed at the original trial.
This scenario illustrates the fundamental unfairness of denying
a pro se defendant in a criminal case the protection of the work
product privilege. The parameters of the work product privilege for
a pro se criminal defendant should be no greater but no less than the
boundaries of that privilege when exercised by a criminal defense
attorney. The goal is not to give the pro se defendant an advantage
over the represented accused, but to ensure that the accused who opts
for self-representation is not penalized with regard to access to the
work product privilege.
In those courts where the prosecutor and the judge believe that
there is no work product privilege for the pro se accused in their
jurisdiction, it is extremely unlikely that the court during the Faretta
inquiry will inform the defendant that the election to proceed pro se
will result in the loss of this specific privilege. Yet, “[a]s to waiver of
trial counsel,” the United States Supreme Court has said that “before
a defendant may be allowed to proceed pro se, he must be warned
specifically of the hazards ahead.” (Iowa v. Tovar, 541 U.S. 77, 88–89
(2004).) Although even an unsophisticated criminal defendant should
realize that there is no attorney-client privilege when the accused is
not represented by an attorney, neither common sense nor logic would
alert an accused that by electing self-representation, he or she will be
deprived of the security of the work product privilege.
As the Supreme Court has emphasized, “[n]o one . . . attempts
to argue that as a rule pro se representation is wise, desirable, or
efficient,” adding “experience has taught us that ‘a pro se defense
is usually a bad defense, particularly when compared to a defense
provided by an experienced criminal defense attorney.’” (Martinez
v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 161
(2000).) Yet self-representation is a fundamental right, even though it
is the exception rather than the rule in criminal trials. In this context,
the pro se litigant is entitled to many of the protections provided an
accused represented by counsel, including being covered by the work
product privilege.
The right to proceed pro se in a civil or criminal matter should
not forfeit the right of the pro se litigant to keep his or her research,
investigation, and strategies safe from the prying eyes of a litigation
adversary, even when that adversary is a federal or state prosecutor.
Without the work product privilege, a pro se litigant is defenseless
against intrusion into his or her files, which makes not only Faretta
unworkable, but also any pro se representation. n
CRIMINAL JUSTICE MATTERS
This column is dedicated to the memory of
ESTHER FRESTER LARDENT, known as the
“Queen of Pro Bono,” who died on April 4, 2016
after 40 years of incredible work for the ABA. See
abajournal.com/magazine/article/esther_lardent_obituary
An International Perspective on Whistleblowing
managed to maintain legal privilege.
CONCLUSION
The enactment and enforcement of whistleblowing legislation
has in recent years become a central element in the fight against
corruption. To this end, countries around the world, but particularly
in Asia, Europe, and North America, have enacted whistleblower
protections aimed at providing safe and reliable avenues for corporate
and government employees to report misconduct. While much has
been achieved in this regard, many countries still have little or no
whistleblower protections. In addition, despite calls for international
cooperation and legal frameworks, whistleblower legislation remains
predominantly a national or regional issue.
Regardless of the presence or absence of whistleblower protections
in a particular jurisdiction, public and private organizations can
through careful advance planning establish an organizational
whistleblowing system. Subject to applicable law, the best practices
36
CONT INU ED F ROM PA GE 1 9
outlined above can assist in establishing a clear and effective internal
whistleblowing system. These best practices focus on six broad
areas: (1) scope, clarity, and communication of internal reporting
procedures; (2) protecting whistleblower identity and the contents
of reports; (3) creating a culture that facilitates internal compliance;
(4) establishing and enforcing antireprisal protections; (5) screening,
investigating, and acting on credible reports; and (6) auditing the
system to ensure its proper implementation and operation. By
implementing these best practices and complying with applicable
local law, the resulting system should encourage early and internal
reporting of wrongdoing, and allow organizations to implement
strategies to control legal and reputational risks. n
CRIMINAL JUSTICE n Fall 2016
Published in Criminal Justice, Volume 31, Number 3, ©2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied
or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.