Leaks, legislation and freedom of speech: How can the law effectively promote public‐interest whistleblowing?

• Published date: 01 March 2014
• Date: 01 March 2014
• Author: David LEWIS,Björn FASTERLING
• DOI: http://doi.org/10.1111/j.1564-913X.2014.00197.x

International Labour Review, Vol. 153 (2014), No. 1

Copyright © The authors 2014

Journal compilation © International Labour Organization 2014

Leaks, legislation and freedom of speech:

How can the law effectively promote

public-interest whistleblowing?

Björn FASTERLING* and David LEWIS**

Abstract. Attention is increasingly being focused on leaking, whistleblowing and

associated compliance and incentives questions. The authors outline the differences

between leaking and whistleblowing, notably on protection of the disclosers. They

review provisions of international conventions on human rights and corruption,

and compare approaches to protecting freedom of speech in France, Germany,

the United Kingdom and the United States. Their ndings highlight the complex,

sometimes conicting issues involved: public, individual, commercial and nancial

interests; abuse of power; security; condentiality; the individual as law enforcer;

and the employment relationship.

Both leaking and whistleblowing may be vital to the preservation of life

and the promotion of healthy democracies. Disclosure by an organiza-

tional insider of concerns about suspected wrongdoing may prove to be a crit-

ical information source for those responsible for dealing with health and safety

risks or for combating nancial crime. According to Agalgatti and Krishna

(2004), the world’s worst industrial disaster (in Bhopal, India, in 1984) could

have been avoided by whistleblowing. At this Union Carbide plant where

thousands died as a result of escaping toxic gas, the concerns of workers and

a journalist had been ignored by the local authority. Detailed investigations

revealed that warnings had been disregarded and that cost-cutting measures

had adversely affected working conditions and the maintenance of safety sys-

tems. In addition to helping to expose nancial scandals, such as those involv-

ing the Bank of Credit and Commerce International (BCCI), Enron (Sterling,

2002) and WorldCom (Jeter, 2003), public-interest disclosures by organiza-

tional insiders are important tools in the ght against corruption which itself

contributes to poverty (Carr and Lewis, 2010). Because corruption is notoriously

* Professor of Law, LegalEdhec Research Centre, EDHEC Business School, email: bjorn.

fasterling@edhec.edu. ** Professor of Employment Law, Law School, Middlesex University, email:

d.b.lewis@mdx.ac.uk.

Responsibility for opinions expressed in signed articles rests solely with their authors, and

publication does not constitute an endorsement by the ILO.

International Labour Review72

difcult to detect and address through formal legal channels, especially in de-

veloping countries, it is important to devise other means by which to expose

corrupt practices.

The usefulness of such public-interest disclosure for remedying prob-

lems, on the one hand, and the vulnerability of the person who discloses, on

the other, have motivated some to seek to elevate “whistleblowing” to a fun-

damental employment right (Lewis, 2008). Although this demand has not been

met, there are laws which promote public-interest disclosures by organiza-

tional insiders by protecting them from dismissal or other forms of reprisal.

This is generally achieved either through human rights and civil liberties guar-

antees, in particular freedom of speech at the workplace, or through specic

legislation on whistleblowing. Additionally, some countries have developed -

nancial incentives to encourage whistleblowing. Many employers have estab-

lished internal reporting procedures that encourage the disclosure of suspected

wrongdoing; in some cases this has been in response to a legal obligation or

regulatory incentive. However, public-interest disclosure through “leaking”

of information is rarely protected and is often unlawful. Despite the threat

of legal sanctions for leaking and the availability of whistleblower protection,

organizational insiders continue to leak information rather than disclose it

through normal communication channels. We believe that this is not only a re-

sult of increased facilities to leak information but also a sign of the inadequacy

of existing protections and incentives for authorized disclosure.

Whistleblowing and leaks

Whereas information leaks may occur on any issue, whistleblowing is usually

associated with disclosures of malpractice, as well as illegal acts or omissions.

The denition of whistleblowing currently used by Transparency International

(a global coalition against corruption) is “the disclosure of information re-

lated to corrupt, illegal, fraudulent or hazardous activities being committed in

or by public or private sector organizations (including perceived or potential

wrongdoing) – which are of concern to or threaten the public interest – to in-

dividuals or entities believed to be able to effect action” (Transparency Inter-

national, 2013, p. 4). One obvious problem is the lack of consensus on what

constitutes “wrongdoing”. Because there is no universally accepted denition

of whistleblowing, the Australian Senate Select Committee on Public Interest

Whistleblowing reached the conclusion that:

…what is important is not the denition of the term, but the denition of the

circumstances and conditions under which employees who disclose wrongdoing

should be entitled to protection from retaliation (Australian Senate Select Com-

mittee on Public Interest Whistleblowing, 1994, para. 2.2).

Although the term “leaking” is normally used to refer to disclosures via

the professional or social media, it is generally accepted that whistleblowing

can occur either inside or outside the organization concerned (Jubb, 1999).

Internal reporting would seem to offer advantages all round: the employer is