Does the law provide protection to whistle-blowers?
Bribery & Corruption
Different laws apply to whistle-blowers in the public and private sectors.
Public sector protections are consolidated in the Public Interest Disclosure Act 2013 (Cth).
There is currently no unified set of whistleblowing protections applicable in the private sector.
There are various sources of protections with respect to disclosures relating to different subject matters or groups of persons, including, e.g. misconduct involving unions and employer organisations (see Fair Work (Registered Organisations) Act 2009 (Cth)), or institutions supervised by the Australian Prudential Regulation Authority (Banking Act 1959 (Cth), Insurance Act 1973 (Cth), Life Insurance Act 1995 (Cth), and/or Superannuation Industry (Supervision) Act 1993 (Cth)).
For whistleblowing in relation to offences under the Corporations Act 2001 (Cth) (Corporations Act), Part 9.4AAA provides protections to current officers, employees, contractors and contractors' employees if they report in accordance with the Corporations Act, including disclosing their identity. In any case, this protection does not directly apply to current officers, employees, contractors and contractors' employees making disclosures relating to criminal bribery offences, unless they also extend to related Corporations Act breaches relating to account-keeping.
Recently and in partial response to a September 2017 Parliamentary Joint Committee on Corporations and Financial Services' report on recommended changes to whistleblower protections in the corporate, public and not-for-profit sectors, Australia's parliament introduced a bill which seeks to consolidate and expand the existing private sector whistleblowing regime in Australia (see also response to question 18 below). In its current form, the bill provides for a single regime to cover the corporate, financial and credit sectors and introduces a parallel regime for tax whistleblowers. Features of the draft bill applicable to the corporate, financial and credit sectors include the following:
- all public, 'large proprietary' and proprietary companies that are trustees of registrable superannuation will be required to have an internal whistleblower policy;
- all eligible recipients of qualifying disclosures from eligible whistleblowers will, where such confidentiality is sought and unless subject to exceptions outlined in the proposed legislation, be required to protect from disclosure the identity of the discloser and information that is likely to lead to the identification of the discloser; and
- all regulated entities receiving qualifying disclosures from eligible whistleblowers will be required to protect eligible whistleblowers from retaliation. Unlike the existing whistleblower protections under the Corporations Act, there is no requirement for whistleblowers to identify themselves in order to receive such protections.
Currently there are no statutory measures which provide for protection for whistle-blowers. However, the draft Act on Transparency in the Public Sphere and the new draft Act on Criminal Liability of Collective Entities for Punishable Offences aim to change this.
Protection would be granted to whistle-blowers providing credible information on specific suspected offences (including offences of corruption and fraud) to the public prosecutor. The public prosecutor would then decide whether or not to grant the whistle-blower status. Whistle-blowers would be protected primarily against termination of their employment or similar measures. In particular, a court would be able to reinstate the employment of that person at his/her request or award compensation.
Additional regulations will be introduced by the new draft At on Criminal Liability of Collective Entities for Punishable Offences, which currently provides that an employee of a corporate entity, a member of its governing bodies, as well as a person acting on behalf or in the interest of the corporate entity based on a contract, reporting irregularities will be considered whistle-blowers. If the whistleblower's employee rights are infringed or the employment of, or the contract with, the whistleblower is terminated for reasons relating to the reporting of irregularities, a court will be able to reinstate the employment of that person at his/her request or award compensation.
Corporate entities will also be obliged to conduct an internal investigation in cases where the information reported by the whistle-blower may be of significance to the criminal liability of the corporate entity. If the corporate entity fails to conduct such internal investigation and to remedy any irregularities discovered during the investigation, it will be possible for the fine to be increased up to PLN 60,000,000 in the criminal proceedings against the corporate entity.
A provision for whistle-blower protection was inserted into the Prevention of Corruption Act in 2010. This protects individuals who report suspected violations of the Prevention of Corruption Act and prohibits an employer from penalising the reporting employee.
Additional whistle-blower protection was introduced in the Criminal Justice Act 2011 along much the same terms as those inserted in 2010 to the Prevention of Corruption Act, and applies to those offences covered by the Prevention of Corruption Act.
The Protected Disclosures Act 2014, which applies to all ‘workers’, including employees, contractors and trainees, provides similar protections to that under the Irish anti-corruption legislation, although the motivation for making the disclosure is irrelevant as to whether it is a ‘protected’ disclosure.
Federal Law No. 13.608, of January 10, 2018, which provides for the telephone services to receive complaints and establish the procedures for the payment of rewards to whistleblowers who assist in police investigations, authorizes the member States of the Federative Republic to create telephone hotlines, to be preferably accessed for free. The law also authorizes that the hotlines are operated by non-profit private entities, through an agreement.
The same law also provides that the Union, the States, Federal District and Municipalities may establish ways to reward whistle-blowers who offer useful information to prevent, repress or determine crimes and administrative offences; which rewards may include the payment of amounts in cash.
In cases where the whistle-blower identifies him/herself shall have his/her identity and personal information preserved and kept confidential.
Although the enactment of such Federal Law has been the first step to establish a whistle-blower program, until the date on which this chapter was prepared no additional regulations have been enacted.
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.
There is no Federal protection for whistle-blowers who in fact may end up with a charge of defamation and civil liability for breach of confidentiality.
Dubai does offer some protection for whistle-blowers in terms of the Dubai Law 4/2016 on Financial Crimes, however, in compliance with the UAE constitution, these provisions will need to be read with the Federal Law.
There is currently no universal whistle-blower protection legislation in Singapore. However, some protection is offered by the PCA – in particular, section 36 protects the identity of whistleblowers in the context of court proceedings relating to PCA offences.
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.
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.
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.
A special legislation namely the Whistleblowers Protection Act, 2011 provides protective measures for anyone who exposes corruption or willful misuse of power by a public servant. The Act establishes a mechanism for receiving complaints of corruption, willful misuse of power / discretion against any public servant and to enquire into such complains. The Act also provides for adequate safeguards against victimization of the complainant and requires the relevant authorities to ensure the complainant’s anonymity as well.
There is no special regime providing protection to whistle-blowers.
However, as explained in answer 10, the sentence can be especially reduced when the agent concretely aids in obtaining or producing decisive proofs for the identification or the capture of other responsible parties, up until the closing of the trial hearing in the first instance.
Although there is no general framework granting special protection to whistle-blowers, there are several rules in the Portuguese legal system that dispense with or mitigate the sentence of the a perpetrator who reports the crime under certain conditions (with restricted time limitations), or who plays a decisive cooperative role in obtaining evidence that allows the identification and capturing apprehension of others involved. As an example of such rules, we emphasize Article 374-B of the Penal Code, Article 8 of Law no. 36/94, Article 5 of Law no. 20/2008 and Article 19-A of Law no. 34/87.
Article 4 of Law no. 19/2008 also provides that public service workers and workers of the State business sector, as well as private sector workers who report the commission of acts of infringement they become aware of in the exercise of their functions or because of them, shall not be adversely affected in any way, including by way of non-voluntary transfer or dismissal. Such workers are also entitled to anonymity until they are indicted, except only in what concerns investigators. After the indictment, they also have the possibility of being transferred to exercise other functions, upon their request, which cannot be denied.
Finally, there is also Law no. 93/99 which sets out the protection measures for witnesses in criminal proceedings.
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.
German law provides no general protection to whistle-blowers. This leaves whistle-blowers exposed to the risk of a termination of their employment contract or possible lawsuits on the grounds of unjustified whistle-blowing unless protected by an effective compliance program and an ombudsman as an external person of trust. Nonetheless, 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 general, the whistle-blower’s identity is protected, unless the disclosure of the person’s identity is demanded by law. Art. 5 of the EU Directive 2016/943 also provides protection to whistle-blowers in certain cases. Nevertheless the directive still needs to be translated into German law.
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.
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 compliance programs adopted by the companies, 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.
Albeit there being no general framework granting a special protection to whistleblowers of corruption crimes, Macao’s legal system provides several rules that specially mitigate or discharge the sentence or even the charge against the perpetrator who has specifically assisted in the collection of decisive evidence to identify or capture other responsible parties, or who somehow may have decisively contributed to discovering the truth. In fact:
Under the terms of Article 7 of Law no. 10/2000, the punishment of corruption crimes may not take place where the perpetrator specifically assists in the collection of decisive evidence to ascertain the crime;
Article 6 of Law no. 10/2014, which approved the Regime of Prevention and Repression of Corruption Actions in Foreign Trade, provides the special mitigation or discharge of sentence in case the active corruptor of a civil servant of a jurisdiction outside Macao has cooperated in the collection of decisive evidence to identify or to capture other responsible parties; and
Under the terms of Article 6 of Law no. 19/2009 which criminalised the commission of corruption crimes in the private sector, the sentence is especially mitigated or discharged where the perpetrator specifically assists in the collection of decisive evidence to identify or capture other responsible parties, or somehow decisively contributes to discovering the truth.
HRA: Yes, the protection regime is set out in Law no. 15/2012, of 14 August, which regulates the rights and legitimate interests of victims, whistle-blowers, witnesses, declarants or experts and subjects especially vulnerable in criminal proceedings, when their life, physical or mental integrity, personal or patrimonial freedom can be endangered by the contribution they are prepared to give to the criminal investigation or the production of evidence in court.
In accordance with the referred law, whistle-blowers, after the verification of certain assumptions essentially related to the existence of risk or danger to the life of such persons, may benefit from the following measures of protection:
- secrecy of the beneficiaries’ identity;
- hide the image, distortion of the voice, or both, where the beneficiary of these measures makes warranties and statements in public proceedings subject to the adversarial system;
- use of teleconference, to avoid recognition of the beneficiary of these measures;
- anticipated production of evidence due to reasons related to the age of the deponent or declarant, with his health conditions, with his imminent travel abroad, or any other reason that will justify it;
- police protection of the beneficiary, as well as of his family members and dependents;
- allocation of means that will ensure the safety of the beneficiary, as well as of his family members and dependents;
- supply of vehicles of the State (which may comprise escorts) to ensure visits to the place where the proceedings will take place;
- availability of a special room in court or police facilities where the beneficiary may have to go and where he may remain without the company of other participants in the proceedings;
- creation of conditions in the prison to keep the beneficiary separated from the remaining inmates;
- change of provisional domicile or accommodation to a place providing better safety conditions; and
- special safety program for the beneficiary (including his family members and dependents) applicable in certain cases (for instance, high degree of risk or danger to human life, physical or psychological integrity), such as change of identity, change of physiognomic or physical appearance, granting of new housing (in the country or abroad), granting of a monthly subsidy or the creation of conditions to raise the means of subsistence
Yes. The Whistle-Blower Protection Act provides protection to whistle-blowers.
Article 6 of the Act of 9 December 2016 stipulates ‘a whistle-blower is a natural person who reveals or reports disinterestedly and in good faith, a crime or an offence, a clear and serious violation of an international commitment duly ratified or approved by France, of a unilateral act by an international organisation pursuant to such a commitment, or of laws and regulations, or a serious threat or damage to public interest, of which he or she has personal knowledge.’
The whistle-blower benefits from a special protection set out in the new 122-9 article of the criminal code according to which ‘a person who breaches a secrecy protected by law is not criminally liable If It is proved that such disclosure is necessary to safeguard the relevant interests that he or she acts in accordance with the whistle-blower reporting procedures defined by Law and that the person meets the criteria defining a whistle-blower provided for in article 122-9 of the Criminal code’.
ITo benefit from an effective protection the whistle-blower must meet several conditions: disinterestedness, good faith, seriousness of the facts revealed, etc. He must not infringe the solicitor-client privilege.
Following the AFA guidelines the internal whistleblowing system is the procedure that organisations implement to enable employees to disclose potentially non-compliant behaviours and situations to the compliance officer, to eliminate such behaviours and situations and to impose sanctions where appropriate. The internal whistleblowing system should be one part of an overall system for preventing and detecting corruption
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 is expected to propose new legislation in the first half of 2018, codifying the existing rules and providing increased legal certainty, although the revision is not expected to grant employees materially increased legal protection.
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.