Does the law provide protection to whistle-blowers?
Bribery & Corruption (2nd edition)
Yes. The right to report crimes and other legal violations by the citizens is well established in the laws and regulations such as the Constitution, the Criminal Procedure Law and the Anti-Unfair Competition Law. As for the protection on whistle-blowers, some specific rules like the Rules of the Supreme People's Procuratorate on Protecting the Citizens' Tip-off Rights were formulated to provide a comprehensive mechanism from both substantial and procedural levels.
Strict confidentiality is the foundational requirement imposed on the authorities that receive any reporting throughout the handling process. Also, the authorities need to take measures (eg. restraining the physical access of those being reported to the reporter) to ensure the safety of the reporters and their close relatives whenever necessary. Retaliation on the whistle-blowers is entirely forbidden by law, and legal liabilities such as administrate punishment, criminal detention or imprisonment can be imposed.
Protection is afforded to whistle-blowers, defined as those who, selflessly and in good faith, report or disclose information on serious violations of public interest – including corruption practices – which they witness in the course of their work.
Conditions for granting the whistle-blower status are stringent, particularly because of a restrictive legal definition and of the whistle-blower’s obligation to use specific reporting procedures. In this regard, the AFA has provided some generic recommendations on the implementation of those procedures in its 2017 guidelines.
Provided the whistle-blower meets the requirements, he or she benefits from a threefold guarantee:
- Confidential nature of the procedure;
- Protection from retaliatory measures (e.g. dismissal is void);
- Exemption from criminal liability.
French law further incriminates both the obstruction to the transmission of a whistle-blower’s report and false accusations made through the whistle-blowing system.
It is worth noting that the national ombudsman (Défenseur des droits) is responsible for orienting and protecting whistle-blowers who contact him; in this regard, he published a guide for whistle-blowers in July 2017.
In March 2019, the German Bundestag finally passed the Law on protection of trade secrets (Gesetz zum Schutz von Geschäftsgeheimnissen) and thereby finally incorporated the EU-Directive 2016/943 into national law. Instead of defining the term “whistle-blowing” the Law takes another approach and regulates the definition and protection of trade secrets between private objects. However, section 5 of the Law contains justifications for disclosure of trade secrets and therefore protects whistle-blowers from criminal conviction and civil liability if the conditions are met. According to that rule, the disclosure of trade secrets is among other reasons justified if the right of free speech covered it or it was necessary to disclose unlawful behavior. Nevertheless, many German legal practitioners criticize the recently published law because it does not contain a legal definition of the term “whistle-blowing” and because whistle-blowing stays an illegal act that cannot be punished in case of justification.
Since the Law for the protection of trade secrets has only recently been passed, there are still many uncertainties regarding the range of protection provided for whistle-blowers. This can only be solved by future practical application. Now a whistle-blower can still be faced with retributive measures or termination of his or her employment contract if his or her suspicion turns out to be unfounded.
In addition, German law provides for certain regulations in different areas of law to establish the process of communication between the employees and/or third parties that preserves the confidentiality of personal data, e.g. in case of securities services providers, Section 80 (1) Securities Trading Act and Section 25 a (1) sentence 6, No. 3 Banking Act.
Furthermore, the regulations of the Federal Financial Supervisory Authority Code (FinDAG) protect whistle-blowers who provide information on violations of regulations, which are under the supervision of the Federal Financial Supervisory Authority.
In addition, the state criminal police of Lower Saxony has implemented an online system for whistle-blowers to contact and communicate with the legal authorities while remaining anonymous.
In the year 2014 an addition was made to the Greek Code of Criminal Procedure in respect to “witnesses of public interest”. According to this, individuals giving information to the authorities with regard to corruption acts may be characterized as “witnesses of public interest” with an order issued by the Deputy Prosecutor of the Supreme Court who supervises the Anti-Corruption Prosecutor’s Office. In order to achieve the status of a “witness of public interest” one must not have any implication in the reported criminal acts and have no personal interest or benefit from his/her testimony. As a “witness of public interest” one can’t be prosecuted for acts of defamation or violations of personal data law and regulations. In addition, there is protection against termination of one’s working/professional contract. If the Authorities believe that a “witness of public interest” may be in danger, it is also provided that he/she can achieve the status of an “anonymous witness” following the procedure set out in the legislation governing organized crime.
Being a relatively new provision, there isn’t enough information on applicability and effectiveness.
The Protected Disclosures Act 2014 provides protection for a whistle-blower who is a worker when a disclosure of relevant information is made.
The term ‘worker’ is broadly defined and includes employees, contractors, self-employed individuals, agency workers and people on work experience.
‘Relevant information’ is information which a worker reasonably believes tends to show one or more relevant wrongdoings and which came to their attention in connection with their employment.
‘Relevant wrongdoings’ include:
- the commission of a criminal offence;
- failure to comply with a legal obligation;
- the occurrence of a miscarriage of justice;
- endangerment of health or safety of an individual;
- misuse of public funds;
- mismanagement of a public body; and
- the concealment or destruction of information tending to show any of the foregoing.
In order for the protections under the 2014 Act to apply, the disclosure must be made through a specified disclosure channel which includes, depending on the circumstances, to a worker’s employer, a legal advisor, government Minister, or other third party.
The 2014 Act requires that the recipient of the disclosure protect the whistle-blower’s identity insofar as possible. A whistle-blower is also protected from penalisation or dismissal by their employer for making a protected disclosure. Further, a whistle-blower will be immune from criminal liability in respect of any offence prohibiting or restricting the disclosure of information if, at the time of making the disclosure, they reasonably believed that it was a protected disclosure under the 2014 Act.
Italian law provides for protection for whistle-blowers in the public sector (laid down by Legislative Decree no. 165, dated 30th March 2001) and, as far as the private sector is concerned, for whistle-blowers who operate in a company which has adopted a compliance program pursuant to Legislative Decree no. 231, dated 8th June 2001 (as integrated by Law no. 179, dated 30th November 2017). In particular, whistle-blowers who report misconduct (or violations of the compliance programs) are ensured the confidentiality of their identity and granted a shield against retaliation or discrimination. Moreover, the corporate compliance programs, to be effective, shall now provide for specific channels that (also by means of IT tools) allow the potential whistle-blower to file any report in full confidentiality.
In the public sector legislation exists regarding this matter, on the federal level as well as on the regional level of Flanders (the Dutch-speaking part of Belgium). The Act of 15 September 2013 on Reporting a Suspected Integrity Violation in a Federal Administrative Authority by a Staff Member protects public employees who report misconduct in the federal government. At the regional level, in 2004, the Flemish government passed a regulation by the modification of the Decree of 7 July 1998. This regulation has been modified in 2013 and 2014. Both the Federal and the Flemish legislation provide a system where the employees can report to an Ombudsman.
In the private sector two specific legislations have been introduced recently. The first one is the Act of 31 July 2017 regulating the reporting of breaches of financial laws and regulations, of which the compliance is supervised by the FSMA (Financial Services and Markets Authority). The second one is the Act of 18 September 2017 implementing the fourth Anti-Money Laundering EU Directive. Please note however there is already a fifth Anti-Money Laundering EU Directive that will have to be transposed by the Belgian legislator into national law.
On the European Level, a directive on the protection of persons reporting on breaches of Union law has been adopted in 2019. It protects whistle-blowers against dismissal, demotion, forms of retaliation, …
The Whistleblower Protection Act protects ‘whistle-blowers’ defined as workers who have disclosed ‘reportable facts’ such as a criminal act described in laws concerning the protection of interests, including individuals’ lives and persons, interests of the consumer, conservation of the environment, protection of fair competition, and protection of citizens’ lives, persons, property and other interests. The Whistleblower Protection Act prohibits dismissal and disadvantageous treatment, such as a demotion or reduction in salary, of the whistle-blower as a consequence of the whistleblowing.
Yes, the law affords protection to whistle blowers. Whistle-blowers, informants and witnesses in a complaint or a case of bribery are protected under section 21 of the Bribery Act. A person who demotes, admonishes or dismisses from employment a whistle-blower or witness is guilty of an offence and is liable upon conviction to a fine not exceeding one million Kenyan shillings or to imprisonment for a term not exceeding one year or both. Whistle-blowers for purposes of bribery cases are entitled to protection to such extent as may be determined by the Witness Protection Agency. It is also an offence to knowingly or negligently discloses information about the whistle-blowers. Section 65 of the Anti-Corruption and Economic Crimes Act is clear that no action or proceeding including disciplinary action may be instituted against any person in respect of assistance given by that person to EACC.
The FCPA itself does not provide protections to whistle-blowers, but two separate federal laws do so under certain circumstances. The Sarbanes-Oxley Act of 2002 provides certain protections to employees of US issuers who report corporate misconduct, including FCPA violations, to government regulators, law enforcement, Congress or supervisors at the issuer. 18 USC section 1514A. Under this statute, whistle-blowers who face retaliation may obtain reinstatement, back pay, attorney’s fees and costs, and other compensation. Id. To obtain recovery, the whistle-blower must file a complaint with the US Secretary of Labour within 180 days of experiencing retaliation. Id. The statute permits the whistle-blower to seek recovery in federal court after exhausting administrative remedies through the US Department of Labour. Id.
The Dodd-Frank Act of 2010 provides slightly different whistle-blower protections. Under this statute, protections are conferred on individuals who report a violation of the securities laws, including FCPA violations, to the SEC. 15 USC section 78u-6; see also Digital Realty Trust, Inc. v. Somers, 138 SCt 767, 777 (21 Feb 2018). This statute also includes anti-retaliation measures, although the recovery mechanism and rights differ from that of the Sarbanes-Oxley Act. Under the Dodd-Frank Act, a whistle-blower may sue his or her employer directly for retaliation in federal court within six years of experiencing retaliation. 15 USC section 78u-6. Allowable recovery includes double back pay, reinstatement and attorney’s fees and costs. Id. If the whistle-blower’s original and timely information results in an SEC enforcement action with a fine of over $1 million, the whistle-blower may receive an award between 10% and 30% of the monetary sanctions recovered by the SEC. The highest whistle-blower awards have exceeded $30 million.
Yes, Article 64 of the LGRA provides that a public official that reports a corruption act by another public official or a private person, or that acts as witness in the corresponding trial, is entitled to and may request reasonable protection measures.
Also, Article 219 of the CPF provides that a crime of intimidation is committed when a public officer, or a person acting on their behalf, uses physical violence or moral aggression to intimidate another person in order to prevent them from reporting or filing a criminal complaint, or from providing information concerning the alleged criminal act or a conduct sanctioned by administrative laws. Such crime is also committed by the public officer that carries out an illicit act or omits carrying out a licit one, that injures the interests of the person that filed the corresponding report or complaint, or of a third party with whom such person has a family, business or affection tie.
Additionally, Article 367 of the CNPP provides that the relevant judicial authority (whether a judge or a court) or the MP may order special measures to protect the physical and mental integrity of witnesses and their family.
Finally, Article 15 c) of the Federal Law on the Protection of Persons Involved in a Criminal Procedure provides certain measures and procedures guaranteeing the protection and attention of individuals involved or cooperating in criminal proceedings, whenever they are in a risky or dangerous situation due to their participation in the proceedings or as a result thereof. Such measures may consist in: (i) assistance, which will have the purpose of accompanying the witnesses (ensuring the relevant witness no damage or aggravation to his personal or patrimonial situation); or (ii) security, with the purpose of providing the necessary conditions to preserve the life, liberty and/or physical integrity of the witness.
Federal Law No. 13, 608 of 18 is extremely concise but authorizes states to create their own hotline and provide a toll-free number for reporter who seek to contribute with criminal investigations.
Moreover, the newly enacted statute requires that all companies that render ground transportation services under a concession must display a sign indicating the existence of the hotline and toll-free number.
Confidentiality is assured and all federal unites are authorized to determine the compensations that will be provided for those who submit useful information for purposes of criminal investigations. As for the reward, the Act does not specify the amount and attributes competence to the federal unites to determine the compensations that will be granted. Nonetheless, the Act does establish that a cash reward may be provided to those who submit information that solves a crime.
As of the present moment, no regulations have been enacted.
In New Zealand, the Protected Disclosures Act 2000 exists to provide protection to employees who report serious wrongdoings of their employer, including unlawful or corrupt use of public money or resources, gross negligence and mismanagement by public officials. The purpose of this Act is to encourage ‘blowing the whistle’ when it is appropriate.
Whistle-blowers are generally not protected by law in Denmark. The Danish Act on Salaried Employees provides some protection against unfair dismissal. However, the law is silent on whistle-blowers.
There are special EU-law based provisions on whistle-blowers in the legal framework regulating the financial sector. The Danish Financial Business Act protects employees in relation to reports on potential violations of financial law. The Danish Act on Measures to Prevent Money Laundering and Financing of Terrorism contains similar provisions in relation to potential violations of the Act. The protection offered by these provisions is relatively narrow in scope.
As a result of the anti-corruption policy conducted by the Romanian state, the applicable legislation in this field has been modified, including in terms of improving the framework for measures to protect the whistle blowers.
Thus, with the entry into force of the new Criminal Procedure Code, the threatened witness statute was regulated, in favour of which one or more protection measures could be applied, such as: a) supervision and guarding of the witness's dwelling or provision of temporary housing; b) to accompany and ensure the protection of the witness or his / her family members during the trips; c) protection of identity data by giving a pseudonym with which the witness will sign his statement; d) hearing the witness without being present, by means of the audio-visual means of transmission, with the distorted voice and image when the other measures are not sufficient.
These measures may be ordered when there is a reasonable suspicion that the witness's life, integrity, freedom, property or professional activity or a member of his family may be endangered by the data he or she provides to the judicial authorities or of its statements.
There is currently no specific omnibus legislation to provide protection to whistle-blowers in Singapore. However, some protection is offered by the PCA – in particular, section 36 of the PCA protects the identity of whistle-blowers in the context of court proceedings relating to PCA offences.
There is growing attention in terms of the need for such specific legislation.
There is comparatively little protection for whistle-blowers under Swiss law. Employees are bound by a duty of loyalty towards their employer as well as a duty of confidentiality that includes maintaining business secrets. They must therefore first report the offence internally within the company. Reporting the case to the authorities because management did not take appropriate remedial measures is acceptable only as a means of last resort.
If employees do not adhere to these escalation principles, they may breach their contractual duties, risking legal consequences leading up to dismissal. Under Swiss law, even an unlawful termination does not make the dismissal void and may at most entitle the employee to financial compensation of up to six months’ salary if the termination is deemed abusive. Therefore, employees who report cases of serious or illegal malpractice within a company to the public face a high level of legal uncertainty.
The current regime for whistle-blowers in the private sector has been repeatedly criticised, most recently by the OECD in its latest country report on Switzerland's implementation of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, but attempts to revise the existing framework have so far been unsuccessful. Switzerland's government has proposed new legislation, codifying the existing rules and providing increased legal certainty. However, the proposed new law does not materially increase the legal protection of whistle-blowers.
The UK provides protection to whistle-blowers under the Employment Rights Act 1996, as amended by the Public Interest Disclosure Act 1998 and the Enterprise and Regulatory Reform Act 2013. This legislation protects workers from unfair dismissal or other detriment where they disclose information about wrongdoing in specific circumstances.
The two key requirements to be met in order to quality for protection are:
- There must be a "qualifying disclosure" of information. This means the worker must reasonably believe the disclosure is made in the public interest, and tends to show that one or more of six relevant failures has occurred, is occurring or is likely to occur (e.g. a criminal offence).
- The disclosure must be "protected". Whether or not disclosure is protected depends in part on to whom the disclosure is made.
Canadian law includes some protection for whistle-blowers at federal and provincial level, but protection is less robust than that seen in other jurisdictions such as the United States.
It is an offence in Canada for employers to threaten to or to take disciplinary action, demote, terminate or otherwise adversely affect employment with the intent to force the employee to refrain from providing information to law enforcement about an offence or to retaliate against an employee who has already provided such information (Criminal Code, Section 425.1). Nevertheless, this provision is limited, applying to employees who report to law enforcement officials only, and not to employees who report wrongdoing to other parties, such as media sources or outside agencies or advocacy groups.
Federally, The Public Servants Disclosure Protection Act (“PSDPA”) prohibits employers from taking retributive action against a public servant who has made a protected disclosure or has, in good faith, cooperated in an investigation into a disclosure or an investigation commenced under the PSDPA. Numerous provincial statutes protect employees who disclose actual or foreseen contraventions of the provisions of that legislation.
In the last decade, the trend in Canada has been towards enhanced whistle-blower protections and incentives. Numerous Canadian public bodies and administrative agencies (such as the Securities Commissions of both Ontario and Quebec, the National Energy Board of Canada, the Canadian Food and Drug Inspection Agency, the Canadian Armed Forces and Canada Revenue Agency) operate whistle-blower programs. The PSDPA has received criticism in recent years for alleged inadequacies, such as placing the onus on whistle-blowers to prove that adverse actions were intended by the employer as reprisals. No action has been taken to rectify these inadequacies; however, with the recent trends in Canada’s anti- bribery jurisprudence, change is likely to come.
There is no specific regulation to whistle blowers Although some level of protection is spread in our legislation, v.g. providing for those who testify or get important evidence in criminal proceedings, namely through Law No. 19/2008, of 21 April (setting out legislative measures aimed at tackling corruption) and Law No. 93/99 of 14 July (setting out legislative measures aimed at the protection of witnesses in criminal proceedings).
One of the said measures is the protection of public officials that report crimes committed within the public sector (Article 4 of Law No. 93/99, of 14 July). Such protection includes prevention from being prejudiced in any way (for example, being fired or transferred to another service against their will).
Witnesses may also be granted the privilege of anonymity.
A National Witness Protection Program is in place in Argentina since 2003. Even though the program’s resources are limited and protective measures have been considered weak, in recent years it offered effective protection to witnesses and whistle-blowers of grand corruption cases. The program sets forth several protection measures, including personal or domiciliary custody; temporary accommodation in reserved places; change of address; provision of economic means for lodging, transportation, food, communication, health care, moving, labour reintegration, and other essential expenses (although not for more than six months).
Anonymous reporting lines have been opened in recent years by the Special Office for Economic Crime and Money Laundering (“Procuraduría de Criminalidad Económica y Lavado de Activos” or “PROCELAC”), and the PIA, at the MPF, and by the Anti-Corruption Office at the Executive. Other administrative agencies have also opened anonymous reporting lines, such as the Tax Administration (“AFIP”, for its acronym in Spanish) and the Agri-Food Sanitary Agency (Senasa, for its acronym in Spanish).
When it comes to corporate internal whistle-blowers, Law 27401 encourages companies to establish a procedure for internal reporting so that employees and third parties file reports under confidentiality or anonymously and without fear of retaliation.
Besides, complementing the protective-oriented measures, positive incentives to whistle-blowers have also been established by Law. On the one hand, Law 27304 on co-operators (“Ley del Arrepentido”, or “Repentant Law”), foresees that persons investigated for corruption and other complex crimes (except high rank State officials) may obtain a reduction of their punishment and the avoidance of prison during the process in exchange for the disclosure of precise, useful and verifiable data relating to other participants in the offense that occupied a higher hierarchical role in the criminal organization. This law has been effectively applied, and provided great visibility to the anticorruption agenda especially in the context of the “Notebook’s Scandal” case, where multiple businessmen and former public officials reached cooperation agreements, boosting the investigations. Law 27,304 makes the Witness Protection Program applicable to whistle-blowers under this law.
On the other hand, Law No. 27319 allows for the application of special investigative techniques in complex criminal investigations, including the possibility of offering economic awards to whistle-blowers.
In addition, and according to Emergency Decree 62/2019, which sets a Procedural Regime for Civil Action, the MPF may develop collaboration programs with the persons who provide relevant information for asset recovery proceedings. The collaborating persons may be awarded with up to 10% of the goods obtained as a consequence of the information they provided.
Yes. If a whistle-blowers suspects that might be in danger, he/she can request some protections such as police protection and/or shelter to the police authorities.