Remove economic barriers for whistleblowers – IBA
This article features our Legal Director Tom Devine and was originally published here.
The International Bar Association (IBA) has published a report that tracks the records of whistleblower laws in 38 countries, and probes the successes and shortcomings of these laws.
Are Whistleblowing Laws Working? A Global Study of Whistleblower Protection Litigation is co-published by the IBA’s Legal Policy and Research Unit (LPRU) and the Government Accountability Project.
The report aims to support legislators, policy-makers and regulators in designing and developing “normative, institutional and judicial frameworks” that effectively protect whistleblowers in law – and in reality.
The report’s five key recommendations are:
1) Countries should publish case decisions online within searchable databases,
2) Governments should publish reports with consolidated information about the impact of whistleblower laws to benefit society,
3) Laws should remove economic barriers for whistleblowers challenging retaliation,
4) All national whistleblower laws should include a periodic review of the laws’ effectiveness,
5) Bias and discrimination should be addressed through intensive public education and training.
IBA President Sternford Moyo (small picture) said: “When whistleblowers report wrongdoings, societies benefit. But generally, these courageous truth-tellers do not receive the protection that they should.
“Putting aside the moral imperative, whistleblowers must be given the full protection of law. Today, there is no greater example of the need for such safeguarding than that of the COVID-19 pandemic,” he said.
The virus has underscored both the importance and value of whistleblowers, as well as the risks they face, he added.
“We should never forget the bravery of Dr Li Wenliang who tried to warn the world about the novel coronavirus and paid the ultimate price by losing his life.”
The two-year research project, undertaken in more than 20 languages, examined the strength of national laws on paper, compared with consensus international best practice.
Reviews of the track record of these protections, as demonstrated in case law, followed to assess whether the laws protected whistleblowers in practice.
Although 48 countries now have standalone, national whistleblowing laws, compared with none in 1978, the report illustrates that whistleblowers have, too often, found that rights that look impressive on paper offer minimal protection in practice
“As countries around the world seek to enact new whistleblower laws or update existing ones, it is important to act on lessons learned for turning these rights into reality,’” said Tom Devine, an internationally-renowned whistleblowing lawyer.
“While there was plenty of anecdotal evidence and some national-level research, the Government Accountability Project and the IBA felt that we needed rigorous global data to understand what is working and what is not.
“We are immensely proud of this exhaustive research.”
The research finds that, in most jurisdictions, the laws are underused. Where there have been cases, whistleblowers have experienced a poor success rate.
In the few instances where they do succeed, whistleblowers are typically awarded meagre compensation.
Recommendations for legislators and regulators include greater transparency and ongoing review of these laws.
Governments should prioritise public education to address underlying cultural stigma and ensure that those who speak up know their rights, the report says.
The report’s core recommendation is to draft laws that reflect global best practices and implement them in good faith.
The report also notes, however, that best practice laws will be ineffective without public support for, and oversight of, these rights.
That is not possible without transparency and education, it says.
In December 2019, EU Directive 2019/1937 on the protection of persons who report breaches of Union law entered into force. Also known as the ‘Whistleblowing Directive’, its purpose is to guarantee an EU-wide standard for the protection of whistleblowers.
EU Member States must implement the directive into national law by 17 December 2021.
This will raise the number of countries with standalone national laws to more than 62.