Whistleblowers: Whose Protection?

accountability

2 August 2013

English Blogs,

As the debate rages on about whether or not US whistleblower Edward Snowden should be extradited from Russia to the USA and about the protection he deserves (or not) for leaking sensitive data on the National Security Agency (NSA)’s surveillance activities, questions have arisen in my mind these past few weeks about the kinds of legal provisions that exist in different countries for the protection of whistleblowers. Recent articles and debates centre more on whether Snowden even qualifies as a whistleblower (see here and here). Questions remain as to why countries such as Russia, Nicaragua and Venezuela have offered Snowden protection, especially with the threat of US sanctions. This blog, however, offers a quick comparison of the legislation enacted or proposed in select countries to encourage and protect public interest disclosure.

“Whistleblowing” or “public interest disclosure” entails disclosure made in good faith that the information revealed is true, serves the interest of the public at large, and increases accountability within Government (and/or the private sector, depending on the legislation). Most countries vary on the types and scope of subject matter that are covered, with some countries clearly defining the scope and others, such as India, leaving it more vague. Coverage for protection also ranges from only Central Government employees, to both State and Central Government employees, to Government contractors and the private sector.

While countries such as the USA and the UK had enacted laws to ensure whistleblower protection in the late 1980s and late 1990s (respectively), the early 2000s saw a surge in such legislation around the world, such as in South Africa (2000) and Japan (2004). At the same time, the Right to Information and anti-corruption movements gathered speed around the world. The United Nations’ Convention against Corruption (UNCAC) was also set up in 2005 and part of the Group of 20 (G20)’s Anti-Corruption Action Plan drafted in Seoul in 2010 specifically focused on whistleblower protection.

There are still several countries, however, including India and Russia, which have yet to enact such legislation. In India, for example, while the proposed Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010 (PID Bill, 2010), was passed by the Lok Sabha (Lower House) in 2010, it has not yet been ratified by the Rajya Sabha (Upper House) of Parliament. The following table compares Indian and US whistleblower protection legislation with that in the UK, Japan, and South Africa, which are considered to be more comprehensive laws.[1] The comparison includes a separate Act in the USA for the Intelligence Community in particular.

International Comparison of Legislation on Public Interest Disclosure and Whistleblower Protection

India	USA (1)	USA (2)		UK	Japan	South Africa
Title of Legislation
Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010 (PID Bill 2010)	Whistleblower Protection Act of1989 (WPA 1989)	Intelligence Community Whistleblower Protection Act of 1998		Public Interest Disclosure Act, 1998 (PIDA 1998)	Whistleblower Protection Act, Act No. 122 of 2004 (WPA 2004)	Protected Disclosures Act , 2000 (PDA 2000)
Definition & Scope of Whistleblowing / Public Interest Disclosure
– “in good faith” – by a public servant or any other person, including a non-governmental organisation, “on any allegation of corruption or wilful misuse of power or wilful misuse of discretion against any public servant” relating to the subject matters listed below	– “to serve the public interest” – by federal employees to serve the public interest by assisting in the elimination of fraud, waste, abuse and unnecessary Government expenditures	– by employees or contractors of intelligence agencies (mentioned below) of wrongdoing within the Intelligence Community with respect to an “urgent concern” as listed below		– by a worker in the reasonable belief that information concerned shows or tends to show violations concerning any of the subject matters listed below	– by workers without the intention of causing damage to others or obtaining wrongful gain or any other wrongful purpose	– by any employee or employer who has reason to believe that the information concerned shows or tends to show misconduct of any employee or employer concerning the subject matters listed below
Definition & Scope of Subject Matter of Public Interest Disclosure
Complaints against a public servant about: (i) violation of the Prevention of Corruption Act of 1988; (ii) deliberate misuse of power or of discretion leading to “demonstrable loss” to the Government or “demonstrable gain” to the public servant; and (iii) attempt to commit or commission of a criminal offence by a public servant. Disclosures on matters covered by the Official Secrets Act, 1923, or relating to the Armed Forces, to intelligence or counter-intelligence, or telecommunications are not covered.	Disclosures of: (i) violations of ay law, rule or regulation; (ii) gross mismanagement or gross waste of funds; (iii) abuse of authority; (iv) or a substantial and specific danger to public health or safety. These disclosures would only be considered if they are not specifically prohibited by law or if the information disclosed is “not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.”	“Urgent concern” about: (i) a serious or flagrant problem, abuse, violation of law or Executive order; (ii) a deficiency relating to funding, administration or operations of intelligence activity involving classified information; (ii) false statement or deliberate withholding from Congress on issues relating to(ii) above. Does not include differences of opinions concerning public policy matters.		Information on: (i) criminal offence; (ii) failure to comply with legal obligations; (iii) miscarriage of justice; (iv) endangering of health or safety of individual(s); (v) environmental damage; and (vi) deliberate suppression of information revealing any of the above.	Relating to violations of laws or dispositions concerning (i) agricultural & forestry product standardization; (ii) environment conservation, (iii) consumer protection; (iv) fair market competition; and (v) individual citizens’ health, safety, property & other interests	Information concerning an employee or employer committing any one of the following: (i) criminal offences, (ii) failing to comply with legal obligations; (iii) miscarriage of justice; (iv) endangering health & safety of individuals; (v) damaging environment; or (iv) discriminating unfairly
Coverage for Protection
Employees of Central and State Governments “or any other persons” including NGOs. Disclosures must be made in writing or via e-mail. Anonymous disclosures not to be considered.	Employees, former employees, or prospective employees (applicants) of Federal government agencies. Intelligence Community members (see adjacent column) not covered.	Employees of or contractors employed by the following agencies (collectively known as the “Intelligence Community”): National Security Agency (NSA), Federal Bureau of Investigation (FBI), Central Intelligence Agency (CIA), Defense Intelligence Agency, National Imagery and Mapping Agency, and through Presidential determination, any other executive agency with the primary function of foreign intelligence or counter-intelligence		Public and private sector employees. Independent contractors also covered	Public and private sector employees, including temporary (“dispatch”) employees	Public and private sector employees. Independent contractors not covered
Reporting and/or Enforcement Authority
Central Vigilance Commission, State Vigilance Commissioner, or any public servant from the Central or State Governments deemed “Competent Authority” to deal with these matters	Office of Special Counsel (OSC)	Inspector General of the Department of Defense or Justice, or his designee; Director of agency; Permanent Select Committee on Intelligence of the House of Representatives; Select Committee on Intelligence of the Senate. Those intending to disclose information to Congress directly must first notify the Inspector General/Director/ designee their intention to do so.		Employer or another responsible person in organization; legal adviser; Minister of the Crown; any other prescribed person; police; Members of Parliament; media.	Employer, Cabinet Office, the Imperial Household Agency, related institutional entities established under various laws to exercise such authority; or organs of local public entities (excluding assemblies)	Legal adviser, employer, Cabinet or Executive Council, Public Protector, Auditor-General, or any other person or body prescribed to examine such matters
Types of Protection
No person or public servant making a public interest disclosure is to be “victimised” because of this. Competent Authority must not reveal identity of whistleblower unless he/she has already revealed it. During investigations, the Head of the concerned Department/ organisation must not reveal identity either. Any person who deliberately (“mala fidely”) reveals whistleblower’s identity would be punishable by law.	Protection from “prohibited personnel practices” (not defined in the Act but separately) and from “adverse consequences” as a result of such practices; prevention of reprisals. Also provides for protection of witness or other individuals from harassment during investigations.	None mentioned	Right not to suffer from “detriment,” including unfair dismissal; can complain to employment tribunal and receive compensation		(i) Annulment of dismissal; (ii) reversal of cancellation of temporary employment contract; (iii) prohibition of any “disadvantageous treatment,” such as demotion, pay cut, discrimination, etc.	Whistleblower not to be threatened with or subjected to the following “occupational detriments”: (i) disciplinary action; (ii) dismissal, suspension, demotion, harassment or intimidation; (iii) transfer against will or refusal of transfer; (iv) refusal of promotion; (v) refusal of reference or provision of less favourable reference; (vi) given disadvantageous term/conditions of employment or retirement; (vii) denial of appointment to employment/ profession/ office; (viii) any other adverse effects related to employment, profession or office, including employment opportunities and work security
Specific Provisions for Public Sector Whistleblower Protection
None mentioned	All government bodies must provide information on the Act to their employees	All agencies must provide information on the Act to their employees	None mentioned		Provisions from existing public sector legislation would be applied as necessary to prevent dismissal of public sector employees and members of national legislature (known as Diet Officers)	All public sector institutions must provide a copy of the Act’s guidelines to their employees
Specific Provisions for Private Sector Whistleblower Protection
None mentioned	None mentioned. Covered by other laws (such as Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, and Amendments to the Securities Exchange Act of 1934)	None mentioned		None mentioned	None mentioned	None mentioned

As can be seen from the table above, countries such as South Africa, Japan and the UK are more comprehensive in their scope, coverage, and types of protection for whistleblowers, with clearly outlined definitions. For instance, the proposed PID Bill, 2010, in India actually does not define the types of victimization that it would provide protection against; on the other hand, the South African PDA, 2000, explicitly states the kinds of “occupational detriments” it provides protection against.

What is of most interest here is that the US has not one but two legislations on public sector whistleblower protection, including one which specifically covers employees and contractors from the intelligence agencies. Yet, in the eyes of the US Government, these laws are not the key ones that are to be upheld in Snowden’s case. The case is complicated by the classified nature of the information he has revealed, making it not merely a legal issue, but also a political one; and the repercussions are already being felt across the globe. Whether Snowden will be considered a whistleblower or a traitor, only time will tell, but for now the issue of whistleblower protection has again been brought to the forefront. Who qualifies as a whistleblower? To what extent can a State impose restrictions on disclosure? What are the implications for civil liberties and citizens’ right to reveal information that they consider is in public interest but is also classified? What kind of protection can such people expect? How can the fear of reprisals be minimized? At the same time, how can the misuse of such laws be prevented? These are just some of the questions that would need to be answered to ground sound policies for whistleblower protection and keep governments and corporations accountable to the general public. Clearly, the work is cut out for our policymakers.

References

Government of India, 2010, The Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010.

G20 Anti-Corruption Action Plan. Action Point 7: Protection of Whistleblowers. Available here: <www.g20.org/load/781360580‎>.

Newcomb, T., 2001, “In from the Cold: The Intelligence Community Whistleblower Protection Act of 1998,” Administrative Law Review, Vol. 53, No. 4, pp. 1235-1272.

Public Interest Disclosure Act, 1998. United Kingdom.

Protected Disclosures Act, 2000. Act No. 26 of 2000, Republic of South Africa.

Sanyal, K., 2011, “The Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010,” PRS Legislative Brief, New Delhi: PRS.

Transparency International-Russian (2013), “Russian implementation of UNCAC,” Accessed from: <http://www.transparency.org/news/pressrelease/transparency_international_russia_recommends_improvements_to_the_implementa>.

US Intelligence Community Whistleblower Protection Act of 1998.

US Whistleblower Protection Act of 1989

US Whistleblower Protection Enhancement Act of 2010.

Whistleblower Protection Act, 2004. Act No. 122 of 2004, Japan. English translation effective April 1, 2006, accessed here.

[1] G20 Anti-Corruption Action Plan. Action Point 7: Protection of Whistleblowers. Available here: <www.g20.org/load/781360580‎>.