Whistleblowers who report any wrongdoing by their superiors to the media may not be protected under the provisions of the recently published Whistleblower Bill.
The Justice Ministry simply referred this newspaper to the relevant articles of the proposed law when asked for its interpretation in three fictitious but plausible scenarios and how the law would apply in each case.
An analysis of the Bill shows that somebody who exposes information about wrongdoing by his superiors or work colleagues to the media, instead of to the whistleblower officials and reporting agencies identified in the Bill, will not be protected by the law.
The Bill is less clear about what happens if the whistleblower goes to the media after having reported the wrongdoing to the whistleblower official.
In this case the Bill makes no particular provisions but according to the ministry a person would remain protected under the Whistleblower Act as long as the disclosure of information was made in terms of the law’s provisions. The Bill neither provides protection to anybody who may have been an accomplice in the reported crime.
Scenario 1: Whistleblowers going to the media
Case: A person in a public company reveals sensitive information that satisfies the provisions of the Bill – something illegal is happening – to a newspaper on condition he remains anonymous. The newspaper publishes the story. Subsequently the company starts hounding the newspaper’s source.
Question: Will the source be protected under the Whistleblower Act even though he did not reveal the sensitive information to one of the whistleblower reporting agencies or to his company but to the media?
Answer: In such an instance the whistleblower who is acting as the newspaper’s source will not be protected by the law. The Bill makes it clear whistleblowers are protected if they report the matter internally to the company’s whistleblower official or if this is not possible to an external reporting agency, such as the Ombudsman.
Under the Press Act, journalists cannot be obliged to reveal their sources, however, this protection is not extended to the source if he is hounded by the company or agency he works for.
The Whistleblower Bill also states that somebody revealing information anonymously will not enjoy protection. However, whistleblower officials or external reporting agencies can receive anonymous reports and action would still have to be taken accordingly. However, a whistleblower official who receives a report by an identifiable individual has to keep the name of the whistleblower confidential bar certain exceptions.
Scenario 2: Going to the media after reporting the case
Case: An employee reports that his company is using illegal food colouring in its production processes and the whistleblower official or reporting agency deals with the matter according to law. However, the employee, who would enjoy protection under the Act, feels that, although the situation has been rectified, it is a matter of public interest to expose the affair by talking to the media.
Question: Will the employee still be protected by the Whistleblower Act if he subsequently speaks to the media?
Answer: The Bill makes no particular provisions in instances when a whistleblower decides to go to the media after having reported the crime to the whistleblower official. However, a person will remain protected under the provisions of the Whistleblower Bill as long as the disclosure was made according to the law.
Scenario 3: Accomplice to crime
Case: An employee in a private company is asked by his boss to illegally dispose of hazardous waste in a field. He complies with the orders and after some time realises that what he is doing is illegal, dangerous and poses a risk to public health.
Question: If the employee spills the beans on his company’s illegal behaviour to the whistleblower official or an external reporting agency, will he enjoy protection under the Whistleblower Bill?
Answer: The Whistleblower Bill does not extend protection or immunity from prosecution to anybody who may have perpetrated the wrongdoing, or may have been an accomplice.
In this case, the employee may be considered to be an accomplice to the crime since the Bill is not clear whether obeying orders would constitute a defence. In fact, it is quite categorical when it states: “Nothing in this part shall prevent the institution of criminal proceedings against the person making the disclosure where the authority has determined that such person was the perpetrator or an accomplice in the improper practice which constitutes a crime or contravention under any applicable law prior to its disclosure”.
Protection and reporting
When is a whistleblower protected?
The Bill makes it clear the whistleblower is protected if the information is being revealed in good faith; he reasonably believes the information is true; the information reveals bad practices carried out by his boss, a fellow employee or somebody acting on behalf of the boss; and the disclosure is not being done for personal gain.
The law does not protect a whistleblower if he knows the information being revealed is false.
No civil or criminal action or disciplinary measures can be taken against a whistleblower who reveals sensitive information that satisfies the criteria stipulated by the Bill.
Internal and external reporting
Each government entity or private company can appoint its own whistleblower official and publish a set of guidelines on how reports are filed. If no official is appointed, or the whistleblower believes the official may also be involved, he can have recourse to external reporting agencies.
Reporting authorities identified by the law are:
• Inland Revenue Commissioner for tax related issues.
• The Financial Analysis Authority for money laundering.
• The Financial Services Authority for information related to banks and other financial services companies.
• The Permanent Commission Against Corruption for allegations on corruption.
• The Ombudsman for other issues and sectors, including voluntary organisations, that are not covered by the other reporting authorities.